Research Report

Polygyny and Canada's Obligations under International Human Rights Law

September 2006

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VII. FOSTERING COMPLIANCE WITH EQUALITY RIGHTS IN MARRIAGE AND THE FAMILY

A. Improved Dialogue

In order to successfully eliminate polygyny within Canada, it is essential that the process be sensitive to the context in which the practice has arisen. To this end, it is valuable to look to the methodology adopted by Women Living under Muslim Laws (WLUML) in their efforts to engage with the Islamic faith where it undermines women's rights rather than reject it outright. As Madhavi Sunder has outlined, WLUML has adopted strategies that challenge fundamentalist conceptions of identity within the private sphere rather than focusing solely on secular strategies to achieve equality in the public sphere.[468] In particular, WLUML's strategy of spreading information about the diversity of Islamic customs and laws in challenging the notion that feminism and human rights are “un-Islamic”[469] may be especially amenable to the Canadian context.

The “Life in Bountiful” report on Fundamentalist Mormon polygyny also alluded to the value of theological dialogue for those whose religious views are being redefined. Within the Bountiful context, the report noted that:

part of the process of coming to be able to deal with society at large entails dealing with the picture of the Mormon church they've accepted. Recognizing the distortions they've accepted in their beliefs about the Mormon church can be an important step in coming to see society at large as a less hostile and dangerous environment.[470]

To achieve this, the report recommended that individuals be able to access counsellors acquainted with Mormon Theology.

Likewise, British Columbia's Attorney-General Geoff Plant has acknowledged the importance that an investigation into the Bountiful, B.C. community be “informed by the history and the culture of the community and be sensitive to that as well as being effective.”[471] To this end, as noted in the “Life in Bountiful Report,” professionals must be sensitive to the life-long conditioning that may have occurred in the polygynous group culture. Currently available literature concerning adult children of alcoholics, co-dependency, and addictive relationships may help professionals to understand individuals' inability to make independent decisions along with their reluctance to criticize those in the group.[472]

Given that mainstream Mormonism has rejected polygyny, it would be helpful at a social level to encourage networking amongst Fundamentalist Mormon women and their mainstream Mormon counterparts. Indeed the networking Janet Bennion outlined in her scholarship on contemporary Fundamentalist Mormon polygyny[473] signals that this type of social framework is already being utilized by women, albeit within polygynous contexts. While this type of networking, as Bennion notes, serves to stimulate companionship, economic stability, social solidarity and spiritual exchange as women cope with their “paradoxical existence” within polygyny,[474] there seems no reason why it could not be extended to include Mormon women living in monogamous communities. This type of dialogue and engagement with the broader Mormon faith community may allow women within the Fundamentalist Mormon communities to re-define religious doctrine that subordinates them while still being able to embrace faith components that are normatively valuable.

B. Canadian Obligations under International Human Rights Law

1. Presumption of Compliance

International human rights standards for the elimination of all forms of discrimination against women are essential to Canada's foreign and domestic policy as well as its jurisprudence. The Canadian Department of Foreign Affairs has publicly noted that “the human rights of women remain a central foreign policy priority for Canada, both in bilateral discussions and in multilateral fora.”[475] In this sense, when Canada fails to address the domestic human rights violations of women through practices such as polygyny, its foreign policy legitimacy is undermined.

Moreover, the issue of gender equality more generally has been described in a Department of Foreign Affairs statement as:

… not only a human rights issue, but also an essential component of democratic development. True development will only be achieved if women are able to participate as equal partners, decision makers, and beneficiaries of the sustainable development of their societies.[476]

Accordingly, in order to foster democratic development, it is essential that Canadian policy and jurisprudence reflect human rights norms that promote the inclusion and participatory citizenship of women.

Beyond its importance in Canada's foreign policy and democratic commitments, international human rights law, particularly in the form of ratified, though often unimplemented treaties, is central to Canadian jurisprudence. While it is beyond the scope of this report to undertake a thorough analysis of the domestic role of international law, it is essential to note the principle of conformity that informs Canadian courts. This general common law principle, articulated by the Supreme Court of Canada in Daniels v. White, holdsthat:

Parliament is not presumed to legislate in breach of a treaty or in a manner inconsistent with the comity of nations and the established rules of international law.[477]

This is noteworthy because although unimplemented treaties are not binding domestically within Canada's dualist system, the presumption of compliance gives them an important interpretive role in cases of statutory ambiguity.

The Supreme Court of Canada has applied this presumption of compliance in its Charter analysis. In Slaight Communications v. Davidson, Dickson J. noted that the Charter is:

presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.[478]

Thus, the right of women and children to be free from the various forms of discrimination that polygyny perpetuates should be given a similar level of protection under Canada's Charter equality and security of the person provisions that it would receive under the Women's and Children's Conventions.

In contrast to treaty law, Canada is generally considered adoptionist with regard to customary international law, meaning that customary norms do not require transformation to have domestic effect.[479] The Supreme Court's holding in Suresh v. Canada (Minister of Citizenship & Immigration) further supported this contention that transformation is unnecessary for customary international law to be invoked domestically.[480] To this extent, an argument that the prohibition, or at the very least growing restriction, of polygyny is part of international customary law as evidenced by state practice and opinio juris would not require a further transformation analysis to have effect in Canadian law.

In spite of the common law principle of conformity and the internationalist persona promoted by Canada through its Foreign Affairs statements, some academic commentators have criticized the disconnection between international and domestic law in the Canadian system.[481] In light of such criticisms, it is important that Courts play their due role in interpreting and indirectly implementing international law. This judicial role can first occur at the stage of interpreting and applying government-enacted legislation to ensure that it conforms with Canada's international obligations. Secondly, Courts can also play a more direct role in looking to international legal principles and materials as well as foreign judicial decisions as a foundation for their decisions.[482]

As former Justice La Forest has articulated, Canadian courts are increasingly becoming “international courts” in several areas of the law making the adoption of an “international perspective” even more important.[483] If Canada's commitment to international human rights law is to be truly effective, it seems, as Elizabeth Brandon has argued, that “all participants in the litigation [must be able to] ‘speak the same language' of international law.”[484]

This ability to “speak the language” of international law, particularly in the context of practices or crimes that are harmful to women can be seen in R. v. Ewanchuk.[485] In her concurring judgment, L'Heureux-Dubé Mme. J. noted the international human rights context in which Canada's reforms to its sexual assault laws arose. She examined the Women's Convention not as binding in itself, but as informing the Court's Charter analysis. In concluding that “our Charter is the primary vehicle through which international human rights achieve a domestic effect,”[486] L'Heureux-Dubé Mme. J. drew a robust connection between the Charter and parallel protections under international human rights law. In addition, her reference to international law's connection to “s. 15 (the equality provision) and s. 7 (which guarantees the right to life, security and liberty of the person) [given that they] embody the notion of respect of human dignity and integrity”[487] is particularly relevant for polygyny, given the extent to which the practice undermines these rights.

The Supreme Court reiterated the statement of L'Heureux-Dubé Mme J. that the s. 7 Charter protection of life, security, and liberty of the person would be informed by international law in subsequent jurisprudence. In Suresh, the Court noted that:

The inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law, including jus cogens. This takes into account Canada's international obligations and values as expressed in ‘[t]he various sources of international human rights law—declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, [and] customary norms.'[488]

This is significant for a security of the person analysis because the international legal norms that recognize polygyny as a violation of women's right to the highest attainable standard of health could thus be considered under a comparative right to security of the person Charter analysis.

2. Values and Principles of a Free and Democratic Society

In addition to the principle of conformity, it is also clear that Canada looks to international human rights law as a reflection of its principles as a free and democratic society. In R. v. Keegstra, the Supreme Court noted that:

Generally speaking, the international human rights obligations taken on by Canada reflect the values and principles of a free and democratic society, and thus those values and principles that underlie the Charter itself.[489]

In many ways this values-based approach was solidified in Baker v. Canada (Minster of Citizenship and Immigration).[490] There, the Court noted that even where an international treaty has not been implemented in Canada (in that case, the Convention on the Rights of the Child), the values of international human rights law may nevertheless inform the contextual approach to statutory interpretation.[491] In what Mayo Moran has referred to as “influential authority,” Baker thus:

engages the ratified treaty… at the level of its general values or principles and imposes obligations of justification and respect, rather than conformity or compliance.[492]

While it remains clear that ratified, though unimplemented, treaties are not legally binding domestically, they do appear to now require some judicial consideration at least at a value-normative level.

L'Heureux-Dubé Mme. J.'s emphasis on the fact that the Court was considering an international human rights treaty in Baker is particularly relevant for a human rights analysis of polygyny. In examining the Children's Convention, she noted that:

the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.[493]

The values represented in unimplemented human rights treaties are therefore relevant to a Charter analysis as well as regular statutory interpretation. It is in this regard, as Moran argues, that the “public power must thus, at a minimum, exhibit some kind of fidelity to the values it has expressly adopted.”[494]

Finally, it is important to note that if a criminal or civil law prohibiting or excluding polygamous unions were challenged and a Court were to find a Charter violation, international human rights law would have an important role to play in a subsequent s. 1 analysis. As the Supreme Court noted in R v. Keegstra:

international human rights law and Canada's commitments in that area are of particular significance in assessing the importance of Parliament's objective under s. 1.[495]

In this sense, the objective of protecting women's right to be free from all forms of discrimination as well as children's right to have their best interests given primary consideration would be viewed as particularly important Parliamentary objectives in prohibiting polygynous unions.

C. Monitoring of Canada's Obligations under the Women's Convention

1. Reporting Mechanism under the Women's Convention

Article 18 of the Women's Convention requires that States parties submit country reports on the:

legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of the present Convention and on the progress made in this respect… .

This reporting mechanism is central to the Convention's international supervisory role. It also provides an important opportunity for non-governmental organizations to focus national attention on specific issues including the government's progress in fulfilling its treaty obligations.[496] In turn, the reporting procedure helps to ensure that:

a) States parties review national legislation and administrative practices for compliance with the Convention,
b) States parties monitor the actual situation of individuals' enjoyment of their rights,
c) States parties demonstrate that carefully targeted policies for the implementation of the Convention have been undertaken,
d) there is effective public scrutiny of government policies as they affect Convention rights,
e) States parties and CEDAW develop a better understanding of the weaknesses or shortcomings of each State party's domestic policies, and
f) the Committee and States parties are better able to exchange information and understand the common problems faced in achieving the goals of the Women's Convention.[497]

Initial reports to the Committee are meant to provide a comprehensive description of the situation of women in their respective countries. Subsequent reports from States parties should identify the progress and changes since the earlier report with a particular focus on the de facto rather than simply the de jure situation of women.[498]

For a State party such as Canada, it is imperative that it fulfill its reporting obligations by highlighting in its future country reports the continued existence of polygynous families and a polygynous community within Canada, along with any measures it is undertaking to remedy ongoing rights violations. If the government reneges on this reporting duty, the Committee could raise criticisms about Canada's failure to provide it with adequate information to evaluate Canada's progress in achieving the objectives of the Women's Convention.[499] Moreover, while NGOs are not accorded a formal role in the review of state reports, they do serve an important function in providing the Committee with information from national groups that supplement, or in some cases contradict, the official submissions made by States parties.[500] Thus, if Canadian country reports continue to neglect to mention polygyny as an area of concern as well as an ongoing government initiative, NGO shadow reports could provide this information to the Committee.

2. Use of the Communications Procedure under the Optional Protocol of the Women's Convention

The Communications procedure found in Article 2 of the Optional Protocol to the Women's Convention, which Canada acceded to on 18 October, 2002,[501] plays an important role in individual redress where States are in violation of their treaty obligations, as well as more generally serving as an advocacy tool for human rights organizations attempting to “name” and “shame” States parties.[502] To this end, the continual highlighting of government violations of treaty norms in the international arena can be an important catalyst for domestic reform.

Article 2 of the Optional Protocol states that:

Communications may be submitted on behalf of individuals or groups of individuals under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without their consent.[503]

Such claims can include allegations of State violations or failures to honour their treaty obligations.[504] Similarly to the complaints procedure under the Optional Protocol to the Political Covenant, the communications procedure can provide specific redress to individuals whose rights have been violated as well as generally secure more timely and direct enforcement of rights obligations.[505] One significant criterion that must be fulfilled before CEDAW will hear such complaints is the exhaustion of all domestic remedies. Similarly to other treaty bodies, the Committee:

shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.[506]

Within the Canadian context, the latter qualification of the exhaustion requirement is relevant for women who have suffered ongoing human rights abuses within polygynous marriages, particularly within the Bountiful, B.C. community. For persons such as Deborah Palmer, a well known anti-polygyny advocate and former assigned polygynous wife, domestic remedies for these human rights violations have not only been “unreasonably prolonged,” but may also be currently unavailable domestically. While 2003 media reports indicated that Palmer was trying to launch a class-action lawsuit in B.C. in the hopes of exposing the “sexual, physical, spiritual and psychological abuses” as well as the educational and financial deprivations in Bountiful, there is no indication as to what transpired in this attempted litigation.[507] Moreover, although police recommended in a 1992 investigation that two Bountiful men be charged with polygamy, the Crown never prosecuted, following legal advice from constitutional experts that Canada's polygamy laws would not withstand a Charter challenge based on freedom of religion.[508]

This reluctance to prosecute individuals for the crime of polygamy has also extended to a failure to prosecute various other alleged crimes within the community including sexual assault, human trafficking, under-age marriage, and physical abuse. In contrast, United States officials, while also strongly criticized for not being vigilant enough or providing adequate services to women and children fleeing such unions,[509] have at least successfully prosecuted some Fundamentalist Mormon men for polygamy/bigamy, as well as associated crimes including child rape.[510]

Thus, it seems that Canada's reluctance to address criminal conduct and human rights violations within the polygynous Bountiful, B.C. context to date would qualify under the Article 2 domestic exhaustion exception. If such a complaint were brought to and heard by CEDAW, the Committee could recommend that Canada take interim measures if it found that the alleged violation could cause “irreparable damage” to the victim(s) of the violation.[511] In the case of polygyny, the above-noted emotional, psychological, and reproductive and sexual health harms would clearly qualify as potentially causing “irreparable damage” to victims. In addition, once the Committee had completed its review of such a communication and heard from all interested parties, it could ask Canada, as the State party, to provide further information as to what measures it had taken in response to the Committee's recommendations and final views.[512]

3. Use of the Inquiry Procedure under the Optional Protocol of the Women's Convention

Beyond the Complaints Procedure, the Inquiry Procedure under the Optional Protocol serves as another important mechanism for ensuring greater conformity by States parties with their obligations under the Women's Convention. Article 8 of the Optional Protocol provides that:

1. If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.

3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations.

4. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee.

5. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings.[513]

The Inquiry Procedure gives CEDAW the authority to independently investigate grave or systemic human rights violations, in all cases preferably with the cooperation of the State party involved. These can include widespread violations such as the trafficking of women or more isolated violations such as customary practices that are harmful to women. The fact that a harmful customary or religious practice such as polygyny is illegal in a given state does not alter CEDAW's ability to investigate it if it is still found to exist. [514] The Inquiry Procedure under the Women's Convention is distinct from those of other human rights treaty bodies because it does not limit who can initiate a claim against a State party.[515] It requires only that the initiating party “provide relevant proof of the alleged violation.”[516]

Given how well documented human rights abuses in the Bountiful, B.C. context are, it is highly probable that CEDAW would find sufficiently relevant evidence to initiate an inquiry if a claim were brought. It is also likely that if an inquiry into polygyny in Canada were undertaken by CEDAW, its scope would extend beyond the Bountiful context. In Marion Boyd's recent report on faith-based arbitration in Ontario, the former Ontario Attorney-General noted that in the consultation stage:

many participants mentioned that although polygamy and performing polygamous marriages are offences in the Criminal Code, police are reluctant to lay charges. The Review received anecdotal evidence from a number of sources that polygamous marriages are being performed in Ontario and concern was raised about the situation of women whose spouses marry more than once.[517]

The presence of polygyny beyond Bountiful, B.C. illustrates the pressing need for the Canadian State to report on and take immediate steps to eliminate the practice.

D. Monitoring of Canada's Obligations under the Political Covenant and the Children's Convention

While CEDAW may be the optimal international body to possibly investigate, report on and propose remedies for current human rights violations relating to polygyny in Canada, other human rights bodies could also be engaged in this process, particularly during the reporting stages.

1. The Human Rights Committee (HRC)

The Human Rights Committee (HRC) is the treaty monitoring body for the Political Covenant. Per Article 40 of the Covenant, States parties are required to “submit reports” on measures taken to “give effect” to their treaty obligations and “on the progress made” in the enjoyment of rights articulated in the Covenant.[518] While it may call for an emergency report during a conflict situation, for example, the HRC has requested that reports be received every five years.[519] These reports are then examined by the Committee of experts in public dialogue with the State party. Significantly, like CEDAW, the HRC does not rely only on State submissions in making its Concluding Observations on a given state. It can also access alternative sources including specialized UN agencies, non-governmental organizations, and the press.[520] After this dialogue process, the HRC will then release its Concluding Observations on a State, which speak to the current human rights situation in that State as well as recommendations for improvements and inquiries for specific information in future reporting.

In addition to state-specific reports, the HRC also issues “General Comments” according to its Article 40 jurisdiction. These Comments address thematic issues relating to the Covenant and serve to expand the meaning and interpretation of specific rights.[521] In response to these reports, the Committee then issues “general comments as it may consider appropriate” to these States parties.

In addition to issuing Concluding Observations on reports of States Parties and issuing General Comments, the HRC, like CEDAW, has an Optional Protocol that allows the Committee to hear individual communications from persons claiming to be victims of human rights abuses committed by a member state. Upon considering the merits of such communications, the Committee issues its “views” under Article 5(4) of the Optional Protocol. These decisions have rightly been characterized as being issued “in a judicial spirit.”[522] States parties that fail to redress breaches found by the HRC or to reform laws that have been found to violate the Political Covenant may face strong public condemnation and questions about the veracity of their commitment to human rights. The “naming and shaming” associated with adverse HRC decisions has indeed motivated many states to alter their laws and/or practices to conform with their obligations under the Political Covenant.[523]

Given that the HRC has expressly stated that polygamy violates the equality of men and women guaranteed in the Political Covenant, legally legitimizing polygynous unions within Canada could be challenged by individual petitions.

2. The Committee on the Rights of the Child (CRC)

The Children's Convention entered into force on September 2, 1990. As of 2005, there are 192 States parties, including Canada.[524] The Children's Convention is considered the most comprehensive single human rights treaty.[525] The Committee on the Rights of the Child (CRC) is the independent treaty body that monitors implementation of the Convention on the Rights of the Child by its States parties.

States parties are required to submit regular reports to the Committee outlining how the rights are being implemented. States must report initially within two years after acceding to the Convention. After this, they report every five years. Like the other treaty bodies, the CRC examines each report and addresses its concerns and recommendations to the State party in its concluding observations. States that have acceded to the two Optional Protocols to the Convention also submit additional reports.[526]

As noted by many commentators, one of the drawbacks of the CRC is that, unlike the HRC and CEDAW, it cannot consider individual complaints.[527] This does not preclude the rights of children being raised at other treaty committees that are competent to evaluate individual petitions. Like other treaty bodies, the CRC has also published several General Comments since 2001 that provide guidance on thematic issues and their reporting. In light of media reports that polygynous marriages in Bountiful, B.C. involve minors, Canada is bound in its reporting obligations to the CRC to outline how such early marriages may threaten adolescent health, as noted above,[528] and to indicate what steps it is taking to eliminate the practice.

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