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Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of Policy Research Reports

An International Review of Polygamy:
Legal and Policy Implications for Canada

4. LAWS ABOUT POLYGAMY: CANADA

Marriage Law

The issue of capacity to marry is a matter of federal jurisdiction in Canada. For many years this issue was governed by the common law established by the 1866 English decision in Hyde v. Hyde and Woodmansee. In that frequently quoted decision, Lord Penzance stated that marriage is "defined as the voluntary union for life of one man and one woman, to the exclusion of all others."³³ In 2000, the federal Parliament enacted the Modernization of Benefits and Obligations Act,³⁴ which confirmed that marriage is "the lawful union of one man and one woman to the exclusion of all others." As well, Bill C-38 (federal), which passed first reading in Parliament in February 2005, provides in s. 2 that: "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."³⁵ So, one cannot enter into a legally valid polygamous marriage in Canada. Further, according to generally accepted principles of Canadian conflict of laws, capacity to marry is governed by the law of a person's domicile (Castel 2002). So if a person domiciled in Canada enters into a polygamous marriage in a country that permits polygamy, that marriage will not be recognized as valid in Canada, and will be regarded as void in most other countries.

Canada's Criminal Code Provisions

Unlike some jurisdictions where criminal laws relating to polygamy deal with this practice as an aspect of the offence of bigamy,³⁶ the Criminal Code of Canada distinguishes between bigamy and polygamy. Under s. 290, a person commits bigamy when, being married to another person, he (or she) participates in a marriage ceremony with another person. The polygamy provision, s. 293, is broader as it prohibits not only participation in a polygamous marriage ceremony, but also makes it an offence to enter into "any form of polygamy" or "any kind of conjugal union with more than one person at the same time."

Polygamy has been illegal in Canada since 1892. This provision was enacted in Canada as part of the first Criminal Code, apparently as a result of American influences, as criminal laws were being enacted about that time in the United States to prohibit the practice of polygamy by members of the Mormon Church (LRC 1985). Undoubtedly, at the time of enactment, Parliament was heavily influenced by the Judeo-Christian view of marriage as monogamous. A couple of reported prosecutions for polygamy occurred around 1900 against Indians, some of whom had a tradition of practising polygamy. The last reported attempt at using this section was in 1937, when it was held by the Ontario Court of Appeal that a man who left his wife and was living in an adulterous relationship was not committing the offence of polygamy.³⁷

Canada's current Criminal Code³⁸ provision criminalizing polygamous marriages is s. 293, which provides:

s. 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…is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Section 293(1) applies to "polygamous unions" in which a man is legally married to his first wife, and has taken another "wife" in a religious ceremony that has no legal significance. If a person is charged with polygamy, subs. 293(2) provides that "no…proof of the method by which the alleged relationship was entered into, agreed or consented to is necessary in the indictment or on the trial of the accused." Thus, either the fact of living in a polygamous relationship, or proof that a polygamous ceremony was held, is sufficient for a conviction; there is not need for both.

Though the language differs, s. 293 of the Criminal Code is similar to the criminal provisions governing bigamy in such American states as Utah.³⁹ There, the criminal law prohibiting polygamy refers not only to an individual who is simultaneously married to multiple spouses, but also to a man who is legally married to one woman and cohabits with another woman. In State of Utah v. Green,⁴⁰ the state of Utah was able to convict Tom Green on four counts of bigamy, because the prosecution established that he was in a valid common-law marriage with Linda Kunz, despite the lack of solemnization, and that he was cohabiting with four other women. Despite the difference in precise words, s. 293 would very likely have the same effect in terms of application to Fundamentalist Mormons practising polygamy in Canada. Where any of the "wives" have been taken through a religious ceremony or otherwise become "celestial wives," the relationship will likely be captured by either a "form of polygamy" or a "conjugal union."

Section 293 is broadly worded and would also seem to make it an offence for a Canadian man to go abroad and enter into a polygamous marriage overseas and then return to Canada. Even if he has only one wife in Canada, it would seem that as long as the polygamous marriage subsists, it does not matter that not all of the parties are in Canada. While there are no reported criminal law cases that deal with this situation, this interpretation of s. 293 is supported by statements made in some immigration decisions. ⁴¹

As discussed in Section 2, Fundamentalist Mormons live in polygamous unions in the mountainous interior of British Columbia and Alberta, and there are reported to be at least "a few" Muslims in polygamous marriages in Canada, though any Muslims who are practising polygamy have apparently not been identified by the police. Since Canadian criminal law prohibits polygamy, there have been calls for charges to be laid against the Fundamentalist Mormons who are openly practising polygamy in British Columbia. Although in the early 1990s, sexual assault and sexual abuse charges were laid against a man in Bountiful who had entered into a polygamous marriage with a minor (Committee on Polygamous Issues 1993), there has been no attempt to lay charges under s. 293.

One explanation for the lack of charges of polygamy, despite its open practice in Bountiful, is that police have difficulty getting evidence. The second reason is that the government of British Columbia has expressed a reluctance to prosecute individuals for the offence of polygamy, as there is a concern that the Criminal Code prohibitions on polygamy are vulnerable to constitutional challenge (Committee on Polygamous Issues 1993).⁴² The federal government, however, is of the view that s. 293 can withstand a constitutional challenge (Committee on Polygamous Issues 1993). As discussed more fully in Section 5, it is also our opinion that the Criminal Code s. 293 is constitutionally valid, though it must be acknowledged that ultimately the issue of its constitutional validity can only be resolved by the courts.

Enforcement Issues

Most of the attention paid to polygamous families in Canada has been directed toward Fundamentalist Mormons and, should there be any criminal prosecutions, they are most likely to involve members of that community. However, due to the secrecy surrounding most polygamous families, it may be difficult to collect evidence for a criminal prosecution or even child protection cases. Even those who have left Bountiful are reluctant to discuss the community with the authorities as they have immediate family members still living in that community whom they wish to protect from retribution instigated by other members of the community (Armstrong 2005).

Mohave Country Investigator Gary Engles summarized the reasons for which members of polygamous communities in Arizona are reluctant to come forward with complaints. "The types of retribution that they will receive if they do talk are horrendous.… Number one, their families are taken away from them. Two, their houses are taken away from them. Three, their jobs are taken away from them. And four, and to a lot of people, most important, their salvation is taken away from them" ("Dr. Phil" 2005). Those who leave Fundamentalist Mormon communities are labelled "apostates" and "considered more wicked than mainstream Mormons and non-Mormons" (Armstrong 2005). The possibility of alienation from family and community is very real, and acts as a powerful deterrent to keep individuals from providing evidence for a prosecution against other community members.

A related enforcement problem is that those raised in Fundamentalist Mormon communities are taught from an early age not to trust outsiders, making those who could provide evidence very reluctant to co-operate with police or other persons in authority. This problem is compounded by the manner in which citizens of Bountiful feel they are viewed by outsiders. As an illustration, in an April 2005 newspaper article, a 20-year-old former resident of Bountiful is quoted as stating that he finds that outsiders are "judgmental" when they learn that he was raised in a polygamous community (Armstrong 2005). Current and former members of polygamous communities tend to feel alienated from the broader society, and are unlikely to co-operate with any investigation or prosecution for polygamy.

Evidence is also difficult to obtain, because in some ways polygamy may be described as a "victimless crime," since, at least while they are living in a polygamous union, plural wives usually tell reporters, researchers and the police that it was their decision to enter into a polygamous relationship, and they are generally vehement in stating that they were not coerced into the relationship. While such "wives" are obviously not going to report the "crime" of polygamy, former Fundamentalist Mormon celestial wives may be more willing to testify, though even these women may be very reluctant to testify in court against former husbands.

The difficulties that would arise if evidence were to be collected in anticipation of criminal prosecutions is revealed by what happened when a small group of women, including former plural wives who lived in Bountiful, filed a complaint in 2004 with the British Columbia Human Rights Tribunal that the practice of polygamy violates fundamental human rights. In response, in April 2005 about 80 female residents of Bountiful, organized into a group called The Bountiful Women's Society, held a public meeting, contacting the media to protest they did not believe they were treated unequally in their polygamous marriages, nor were they neglected or "brainwashed" into entering polygamous unions. These women assert that "it is not the Government of British Columbia that has violated our human rights [by failing to intervene to end polygamy], but the continued false accusations of a few self-serving activists, fanned by the frenzy of a story-seeking media, that has violated our constitutionally guaranteed rights of religion, association, privacy and peaceful assembly" (Carmichael 2004). These women voiced their support for "plural marriages." They stated that they benefited from these relationships, by pooling resources and having the opportunity to marry a man who has "proven" himself. They also denied that women are forced to marry against their will (Hutchison 2005). They clearly do not view themselves as "victims."

A related issue is that women who live in a polygamous union are technically just as much in violation of s. 293(1) of the Criminal Code, but their prosecution would very likely result in a wave of public support for them, and indirectly for polygamy. Understandably, the few recent prosecutions for polygamy in the United States have only been against men, and the Crown prosecutors in Canada would very likely only prosecute husbands.

Group Sex and Adultery

Both Muslims and Fundamentalist Mormons are generally modest in their dress, and very traditional in their attitudes toward sex, including strong condemnation of adultery and premarital sex. Polygamy as practised by Muslims and Fundamentalist Mormons does not involve group sex; sexual contact is only between the husband and one wife at a time. It is, however, instructive to consider the laws governing group sex and adultery, practices which can in some ways be analogized to polygamy. It should also be noted that there are some polygamous relationships in North America which do not have a religious basis and which may be more likely to involve group sex. The practices of "polyamory" and "polyfidelity," for example, have recently begun to emerge in the United States, though the number of participants is quite small (Strassberg 2003). Unlike traditional polygamous relationships, these unions may involve multiple partners of both sexes, often with different sexualities. If polygamy is legally sanctioned in Canada, it seems probable that more people will form openly polygamous unions not based on any religion and involving group sex.

In 1982, in R. v. Mason,⁴³ the Ontario Provincial Court held that sexual activities involving a small number of persons in a private, non-commercial setting is not an "indecent act" within the meaning of s. 197 of the Criminal Code, and acquitted an individual who organized meetings for this purpose in his home on a non-commercial basis. Judge M.A. Charles found the prevailing community standard to be one of tolerance toward group sex, if done in private.

The issue of consensual group sexual activities that take place in a commercial setting is more controversial. In R. v. Labaye,⁴⁴ the Quebec Court of Appeal dismissed an appeal of a conviction for keeping a common bawdy-house, concluding that group sex acts at a bar were indecent acts, noting the harm caused by the participants having unprotected sex with many partners and the degradation caused by the voyeuristic activities of many of the club members. Justice Rayle observed that this situation had "nothing…in common with partner-swapping in a private context," clearly implying that such private activities would be legal. In R. v. Kouri⁴⁵ the Quebec Court of Appeal reversed a lower court decision and acquitted the accused of keeping a common bawdy-house for group sex that also occurred in a bar, albeit in a somewhat different situation from Labaye; access to the place was restricted, and it was clear to all in attendance that group sexual activities would occur. Justice Otis held that the sexual acts performed by those who practise "swinging" (couples exchanging sexual partners) do not constitute acts of indecency. Also in Kouri, Justice Rochon stated that the location of the acts is an essential component of the test to determine whether an act is "indecent," with the result that "[f]or several decades now the State has disclaimed any right to look into the sexual activity of consenting adults in the privacy of their own homes." He also stated "it appears…that Canadian society tolerates ‘swinging' only insofar as these activities take place in private." Kouri and Labaye have both been appealed to the Supreme Court of Canada, and were argued in April 2005 (Schmitz 2005). While the Supreme Court should clarify the legality of group sexual activities that occur in a setting to which the public may have access, it already seems clear that polyamorists who might engage in group sexual activities in their homes are not committing a crime. Their activities would very likely not qualify as "indecent," as long as they take place in private, between people who are involved in a stable and exclusive relationship. Even more so, the sexual activities of polygamists who engage in sexual acts only between a husband and one wife at a time are not criminal. It is not their sexual activities that are criminal, but their living and child care arrangements.

While some Canadian provinces had pre-Confederation laws making adultery or fornication a crime, for well over a century adultery has not been a crime anywhere in Canada, and in some ways polygamy may be analogized to adultery. Indeed, Mohamed Elmasry, president of the Canadian Islamic Congress, claimed that adultery is more damaging than polygamy for children (Cobb and Harvey 2005). He argued that polygamy, though illegal in Canada, is more "moral" than adultery, since the first wife must consent and because the husband must treat the children of different wives equally. Further, it may be argued that polygamy is a more open and honest arrangement than adultery.

It may, however, be that some of the negative effects generally associated with adultery may also apply to polygamy. It is not uncommon for a polygamist husband to take a second wife without consulting or notifying his first wife, and even if there is apparent "consent," there may be real concerns that the first wife has been coerced into accepting a subsequent wife (Yaqub 2004). Perhaps more significantly from a policy perspective, one of the distinguishing features between polygamy and adultery is that, in a polygamous union, children are an expected part of the relationship. Most polygamous marriages have large numbers of children, while children are rarely the product of adulterous relationships. As discussed in Section 2, polygamy is associated with poor emotional and educational outcomes for children, and children of different wives are often treated unequally.

In Canada, the difference between adultery and polygamy was addressed in the 1937 case of R. v. Tolhurst and Wright.⁴⁶ The Ontario Court of Appeal distinguished between adultery and polygamy, and found that the Criminal Code provision about polygamy (today s. 293) did not apply to adulterers, as the phrase "any kind of conjugal union" does not encompass adultery. Chief Justice Rowell held that, to prosecute for polygamy, there must be "some form of union under the guise of marriage" and living in an adulterous relationship does not constitute the offence of polygamy.

In most circumstances, the difference between adultery and polygamy will be clear, as adulterous relationships are generally sexual, not conjugal, in nature. Adultery is not illegal, because it does not threaten the concept of monogamy, but rather exists within it. Polygamy, in contrast, is illegal, because it violates the concept of monogamy and undermines monogamy (LRC 1985). As American courts have stated in their decisions upholding laws prohibiting polygamy, monogamy is a fundamental concept in their society,⁴⁷ as it is in Canada and other western nations. A recognition of the importance of monogamy and gender equality, combined with the growing body of research suggesting that polygamy is associated with negative outcomes for women and children (Hassoueh-Phillips 2001; Al-Krenawi 2001; Al-Krenawi et al. 2002), may also explain why polygamy is illegal, though adultery is not.

Recognition of Foreign Polygamous Marriages - Immigration Issues

The issue of whether Canada will permit individuals involved in polygamous marriages to immigrate to Canada has arisen in a number of reported cases. According to the 1998 case of Ali v. Canada,⁴⁸ immigration authorities may decide not to permit parties to a polygamous marriage to immigrate to Canada. In that case, the Federal Court of Canada upheld an immigration officer's decision to deny a man's application for permanent residence as there were reasonable grounds to believe the applicant would practise polygamy in Canada, since he was already in a polygamous marriage. The Court concluded that the applicant, whose marriage was valid under the laws of Kuwait, would have had to divorce one of his wives (presumably in Kuwait) to comply with the Criminal Code polygamy provisions. The Court held that having two wives constitutes a polygamous marriage, and that it is immaterial whether there is simultaneous cohabitation with both wives at one location.

A year later, a similar decision was rendered in Awwad v. Minister of Immigration.⁴⁹ A wife in a polygamous marriage whose husband was a resident of Canada applied for permanent residence under the self-employed category. She also applied on humanitarian and compassionate grounds, because her three children were already living in Canada with her husband, together with his first wife and their children. Justice Teitelbaum held that the immigration officer did not err in taking into account her marital relationship as a negative factor. Citing Ali v. Canada, Justice Teitelbaum ruled that immigration officers may consider whether the admission to Canada of a party to a bigamous or polygamous marriage would be contrary to the Immigration Act and other Canadian laws.

In contrast with the Ali and Awwad decisions, in 1994 Citizenship and Immigration Canada reportedly gave permission to three American women to stay in Canada permanently, even though each woman was a "wife" of prominent Bountiful polygamist Winston Blackmore (Matas 2002c). Although their applications were at first refused, immigration officials from the national headquarters of Citizenship and Immigration granted permission for the women to stay in Canada permanently. They were not regarded as Family Class immigrants, but were granted permission to stay on "humanitarian and compassionate" grounds as their children with Winston Blackmore were already residing in British Columbia. The apparent discrepancy between this case and the Awwad case raises the issue of whether the same standard is being applied to all polygamous potential immigrants.

In 2001, the Immigration Act⁵⁰ was repealed and replaced by the Immigration and Refugee Protection Act,⁵¹ which came into effect in June 2002 (Marrocco and Goslett 2004). Concern was expressed in the media that the new Immigration and Refugee Protection Act, and the accompanying regulations might facilitate immigration for the wives of polygamous husbands (Matas 2002c). Under the Regulations of the new Act, however, those in polygamous unions remain excludable. Section 5 of the Regulations provides that a foreign national will not be considered the "spouse" of a person and eligible for Family Class entry if the foreign national was, at the time of marriage, the spouse of another person. As well, subs. 125(1) of the Regulations states:

While the provisions under subs. 125(1) appear to be specifically intended to reduce the possibility of polygamous marriages being established in Canada, this is not an absolute bar to entry of polygamous families into Canada. Under subs. 25(1) of the Immigration and Refugee Protection Act, 2001, the Minister of Immigration may grant an exemption, on humanitarian and companionate grounds, for a foreign national who is "inadmissible" or "who does not meet the requirements of the Act." In doing so, the Minister is to take into account "the best interests of a child directly affected." Also, all members of a polygamous family may enter Canada together as refugees. Further, some or all of the parties to a polygamous marriage might enter Canada as independent entry immigrants under the Investor or Skilled Worker classes. And it is also possible for members of a polygamous family to be in Canada illegally, for example by entering as a visitor and overstaying.

Recognition of Foreign Polygamous Marriages - Family and Succession Law

Though in 1866 in Hyde v. Hyde Lord Penzance did not recognize a potentially polygamous marriage as valid for the purposes of obtaining a divorce, he also stated that he did "not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue of the polygamous unions."⁵³ In Ontario, both the Family Law Act⁵⁴ and the Succession Law Reform Act⁵⁵ provide that "the definition of spouse [for the purposes of the Act]…includes a [spouse whose] marriage...is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid." There are, however, no reported cases of these provisions being invoked. Even outside of Ontario, if a dependent wife in a polygamous relationship were to claim spousal support or property relief, there would be good arguments for granting relief to such a vulnerable person in a Canadian court. The claim would be strongest if the woman had married the man in a jurisdiction where the marriage was valid and continued to reside there while the husband resided in Canada.⁵⁶

Case law in Canada gives limited judicial recognition to polygamous marriages in certain contexts, particularly to protect women and children. In Tse v. Minister of Immigration,⁵⁷ for example, the court found that, if parties to a polygamous marriage enter the relationship in their country of domicile and that country recognizes the marriage as valid, Canada will recognize it as valid for certain purposes. In Tse, a polygamous marriage contracted in Hong Kong was held to be valid for the purposes of establishing the legal status of the child.