Publications

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

Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada

III. SHOULD CANADA DECRIMINALIZE POLYGAMY AND PLURAL UNIONS?

The current prohibition against polygamy is set out in s. 293 of Canada'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.⁷³

Section 293 applies to parties who “practise” polygamy in Canada, and this would apply to those who are parties to a valid foreign polygamous marriage. The justification for criminalizing those who carry on a marital relationship that was legally sanctioned in their home country is unclear.

A distinct but related issue is the application of s. 293 to parties to a plural union who go through a religious ceremony within Canada. Section 293 covers not only polygamous marriages in the legal sense but also any “conjugal union” whether or not it is recognized as a binding form of marriage. Thus, by its terms, the provision would apply to parties who enter into a plural union in Canada, despite the fact that any such arrangement would be a nullity. That is not to say that there could be no legal consequences arising from such unions. As discussed above, some of the incidents of marriage that have been extended to unmarried partners may attach to parties to plural unions if those incidents are not limited to unions of two people. But under the law, plural unions would not be marriages, and any legal consequences would not be based on the plural union but rather on cohabitation for a certain period, unjust enrichment or a child born to the relationship.

The rationale behind using the criminal law to address problems relating to plural unions is unclear. The Law Reform Commission of Canada recommended abolition s. 293 in 1985 (Gordon 2002). The Commission, in reference to plural unions celebrated in Canada, stated:

[P]olygamy appears so foreign to our values and our legal system that it is both unnecessary and excessive to sanction it criminally. …Abolishing the crime of polygamy does not amount to condoning the practice. Our legal institutions and the institution of marriage adequately preserve the principle of monogamy. Repealing the offence of polygamy is thus evidence of moderation and a mark of confidence in our own institutions. By not giving polygamy any legal recognition, matrimonial law ensures that this phenomenon is not viable in Canada. This should therefore be reflected in the Criminal Code (Gordon 2002: 29).

Various other analysts have weighed in on the issue. In their writings no clear distinction is drawn between valid foreign polygamous marriages and plural unions. Rather, they seem to include all such arrangements under the term “polygamy.” For example, Young and Gold (1994) endorsed the 1985 recommendation of the Law Reform Commission of Canada to remove polygamy from the Criminal Code. They argued that, in regard to a consensual crime such as polygamy, there was a strong case for religious accommodation, provided the harms to society did not outweigh the concern for religious liberty.

Hamid (1994), on the other hand, rejected the notion that there should be accommodation for religiously mandated polygamy. He argued that such accommodation would support patriarchal religious practices that denigrate the status of women in society and cause significant harm to participants and others. Currie, in a subsequent report, agreed with Hamid, stating:

Despite the recognition of the increasing diversity of family and household forms emerging in Canada because of divorce and remarriage, single parenting, and cohabitation of both homosexual and heterosexual couples, polygamy presents a problem from the point of view of gender inequality. Traditionally, polygamous marriages appear to be almost universally associated with inequality between the sexes (Currie 1994: para. 3.1.3).

In its 2001 paper, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, the Law Commission of Canada questioned the need for criminal sanctions.

Further study is required on the effects of polygamy and the appropriate governmental response, for example, around inequality and balance of power issues which may exist within the relationship. However, it is reasonable to question whether use of the Criminal Code is the best way to respond to these issues (IRC 2001: n. 32).

The British Columbia Civil Liberties Association (BCCLA) also supported the repeal of s. 293. The BCCLA reasoned that “it is a matter of personal autonomy for individuals to choose their preferred type of conjugal relationship” (BCCLA 2001: 7). The Board of the BCCLA (2001: 7) adopted the following resolution.

The BCCLA opposes the prohibition on polygamy on the grounds that all of the other alleged abusive and exploitive acts (child and spousal abuse) are clearly prohibited by existing, ordinary criminal provisions - provisions which the BCCLA believes should be vigorously applied, whether the relevant relationships are monogamous, bigamous, or polygamous. Mounting a fresh and additional attack on polygamous relationships per se adds nothing to this equation beyond creating additional impediments to important human freedoms of association, conscience, expression, and religion.

These various reports evince divided views on the issue of criminalization. Those favouring retention of s. 293 generally do so on the basis that polygamy and plural unions are harmful to women and associated with gender inequality. We find more persuasive the arguments in support of decriminalization. Decriminalization does not indicate endorsement of the practice of polygamy or plural unions. Criminalization is not the most effective way of dealing with gender inequality in polygamous relationships. Other criminal provisions address the problems of child and spousal abuse. Although we recommend repeal of s. 293 in its entirety, it is particularly problematic in its application to parties to a valid foreign polygamous marriage who carry on a marital relationship in Canada. This is perhaps particularly so in light of the fact that neither prostitution nor adultery nor unmarried cohabitation is a criminal offence in Canada.⁷⁴ Why then should a legally sanctioned marital relationship (albeit, legally sanctioned in another country) be subject to criminal penalty? A similar point can be made in regard to those who enter into plural union within Canada - in light of the permissive sexual mores of Canada why single out that particular activity for criminal punishment? It is unnecessary and excessive to impose criminal sanctions against those who enter into a plural union in Canada when the plural union would be considered a legal nullity. Finally, criminalizing plural unions arguably violates the parties' freedom of religion, as discussed in the next section.

Potential Charter Challenge to s. 293

Another issue that must be considered is whether s. 293 could be challenged on constitutional grounds. With the adoption of the Canadian Charter of Rights and Freedoms,⁷⁵ questions have arisen about the constitutionality of this prohibition.⁷⁶ A constitutional challenge would have to resolve five legal issues.

• Does the Charter apply to the prohibition against polygamy and plural unions?
  
  
• Does the party launching this Charter challenge have standing to litigate it?
  
  
• Does prohibiting polygamy and plural unions infringe a Charter right?
  
  
• Can Canada justify infringing this Charter right?
  
  
• What remedy would be available?

Does the Charter Apply to the Prohibition Against Polygamy?

The Criminal Code was enacted by the Parliament of Canada, and the Charter applies to all matters within the authority of Parliament.⁷⁷ Therefore, any section of the Criminal Code that is inconsistent with the Charter will be unconstitutional.

Does the Party Launching This Charter Challenge Have Standing to Litigate It?

Specifically, do parties who have legally entered into a valid polygamous marriage in their country of origin and subsequently relocated to Canada have standing to challenge the constitutionality of the prohibition against polygamy? Whether a person has “standing” (i.e., to bring legal proceedings) “is a question about whether the person has a sufficient stake in the outcome to invoke the judicial process” (Hogg 1997: 56-3). The simple answer is that if a person were charged with violating s. 293, he or she would have standing to invoke the Charter to challenge the constitutionality of this provision in defence.

However, crown attorneys have been reluctant to prosecute the offence of polygamy. Therefore, the question is whether parties to a valid foreign polygamous marriage could initiate a Charter challenge to s. 293 in the absence of a prosecution. “The general rule is that only the Attorney General has standing to bring proceedings to vindicate the public interest” (Hogg 1997: 56-4). There is an exception to this rule for an individual who can show that she or he is “exceptionally prejudiced” (Hogg 1997: 56-4). Thus, an individual would have standing to initiate a challenge to the constitutionality of s. 293 on showing that “the statute applies to him or her differently from the public generally” (Hogg 1997: 56-5).

Parties who have legally entered into polygamous marriages in their country of origin and subsequently relocated to Canada should be able to show they are “exceptionally prejudiced” by s. 293 of the Criminal Code. They are easily identifiable from their immigration and refugee records such that any change in prosecutorial policy would make them immediately vulnerable to criminal charges under s. 293. In contrast, not only are most members of the Canadian public monogamous but also there is no mechanism for identifying those who are not, particularly if they opt to hide their marital status.⁷⁸ Under these circumstances, women who have legally entered into polygamous marriages in their country of origin and subsequently relocated to Canada should be able to sustain the claim that they are “exceptionally prejudiced” by s. 293 remaining in the Criminal Code, and hence they should be granted “standing” to challenge its constitutionality. Parties to plural unions who live in easily identified communities that endorse the practice of plural unions could make a case that they are “exceptionally prejudiced” by s. 293.

Does Prohibiting Polygamy Infringe a Charter Right?

A constitutional challenge to s. 293 would most likely be based on the right to freedom of religion, set out in s. 2(a) of theCharter, which provides: “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion.”⁷⁹

Parties who for religious reasons legally entered into polygamous marriages in their country of origin before relocating to Canada or who entered into a plural union within Canada would need to establish their adherence to a “religion” within the definition adopted by the Supreme Court of Canada. In the Anselem case, Justice Iacobucci, writing for the majority, held:

Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.⁸⁰

Parties who claim that polygamous marriage is consistent with their religious beliefs “need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion.”⁸¹ Rather, the most that courts may inquire into is “the sincerity of a claimant's belief, where sincerity is in fact at issue.”⁸² Moreover, “the court's role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not artifice.”⁸³ Thus it would not be difficult for parties who entered into valid foreign polygamous marriages or plural unions within Canada for religious reasons to show that they believe the practice has a nexus with their religion and that they are sincere in this belief.

Once freedom of religion is triggered, a claimant must “show that the impugned…legislative provision…interferes with his or her ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.”⁸⁴ Although the degree of interference may be debatable in some contexts, there is no question that being charged with and convicted of an indictable offence for which the penalty could be incarceration for five years (as s. 293 provides) is a non-trivial interference.

In sum, these religious claimants should be able to make out a case that s. 293 interferes with their Charter right to freedom of religion. However, this is not the end of the matter. As with other Charter rights, the right to religious freedom is not absolute. The Canadian government may claim that s. 293 is a valid limitation on the exercise of the right to freedom of religion. If so, Canada must use the Charter to justify this claim. 

Can Canada Justify Infringing This Charter Right?

To justify s. 293 of the Criminal Code prohibiting polygamy, the Canadian government must argue that it is consistent with s. 1 of the Charter, which provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”⁸⁵

The Supreme Court of Canada developed the Oakes test to determine which claims about limiting rights are justifiable under s.1. The Oakes test has two central criteria that the government must satisfy to justify limiting a Charter right. First, the objective of the impugned provision must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom;” that is, it must “relate to concerns which are pressing and substantial.”⁸⁶ Second, there is “a form of proportionality test” which has three components: the measures “must be ‘rationally connected' to the objective;” they “should impair ‘as little as possible' the right or freedom in question;” and “there must be a proportionality between the effects of the measures…and the objective.”⁸⁷ Thus, Canada has the burden of showing on a balance of probabilities that s. 293 meets these four s. 1 requirements: pressing and substantial objective, rational connection, minimal impairment, and deleterious/salutary effects.

Pressing and Substantial Objective

Canada will presumably argue that the pressing and substantial objective of s. 293 is gender equality. In particular, Canada may claim the prohibition on polygamy and plural unions is aimed at the protection of women and children. This contention has a long history (Kames 1796; Hume nd). In the late 19th century, the United States repelled a religious freedom challenge by a Mormon polygamist in a bigamy case in which the trial court judge had charged the jury to “consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children, - innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers.”⁸⁸ However, no reference was made to this objective in the seven Canadian cases that have interpreted the prohibition against polygamy.⁸⁹ Although few in number, these cases should not be discounted, especially since four of them explicitly attribute the rationale for the prohibition to the existence of Mormon polygamy in the United States.⁹⁰

Canada might try to reinforce its argument about gender equality by invoking another historical case, the bigamy reference. Decided by the Supreme Court of Canada in 1897, long before the Charter, this case concerned the constitutionality of the extraterritorial features of the prohibition against bigamy found in the same part of the Criminal Code as the polygamy section. “Bordering as Canada does upon several foreign States, in many of which the laws relating to marriage and divorce are loose, demoralizing and degrading to the marriage state,” Chief Justice Strong observed, “such legislation as is contained in the [bigamy] sections of the Criminal Code seem to be absolutely essential to the peace, order and good government of Canada, and in particular to the maintenance within the Dominion of the purity and sanctity of the marriage state.”⁹¹ While referring neither to polygamy, plural unions, nor to gender directly, this statement about the objective of a related provision nevertheless strongly implicated social relationships. Moreover, Canada might adduce contemporary support by pointing to the United Nations position that polygamy contravenes women's equality rights (UNCEDAW 1992: 1).

In effect, the Canadian government must advocate the gender equality objective, because it is the only argument available to establish a secular objective for s. 293. The counter argument is that s. 293 serves a religious purpose that does not qualify as a pressing and substantial objective. To sustain this counter argument, it is necessary briefly to review the history of the prohibition against polygamy and the relevant Charter jurisprudence.

The historical origins of prohibitions against polygamy, plural unions and bigamy are ecclesiastical, dating back to the 13th century in England, when “[p]olygamy…was cognizable only in the ecclesiastical courts where it was presumably subject to the normal penalties for immorality.”⁹² (It should be noted here that historically the term “plural unions” was not used; rather those arrangements were generally included in the term “polygamy.”) From about 1547, “the use of the term polygamy begins to decline, and the term bigamy begins to be used in the sense of being married to two wives simultaneously” (Bartholomew 1958: 260). The first English statute making bigamy a felony was enacted in 1603 (Bartholomew 1958).

In Canada, polygamy and plural unions were first proscribed in 1890.⁹³ Three years later it was included in Canada's first Criminal Code.⁹⁴ The prohibition was in reaction to the difficulties the American authorities were having in dealing with the polygamous practices of the Mormons in Utah at the time (LRC 1985: 22; Gordon 2002). The U.S. Congress, whose members expressed the view that polygamy was a practice as heinous as slavery, passed The Edmunds Act in 1882.⁹⁵ This Act outlawed bigamy and polygamy in the U.S. Territories (which at that time included Utah) and provided for disenfranchisement of all who were convicted of those crimes. In 1889, The Globe reported on the immigration of Mormons to Alberta, and on the group's unsuccessful request to Canada's Parliament for special privileges (The Globe 1889: 4).

In the Parliamentary debates on the provision in the Bill dealing with bigamy, Sir John Thomson explained that it was “intended to extend the prohibition of bigamy…to make a second marriage punishable during the life of a wife or husband, whether the marriage took place in Canada or elsewhere, or whether the marriage takes place simultaneously, or on the same day.”⁹⁶ In regard to the polygamy prohibition, Thomson stated that he was not aware that the practise yet existed in Canada but that it did pose a threat. He said, “I think it will be much more prudent that legislation should be adopted at once in anticipation of the offence, if there is any probability of its introduction rather than we should wait until it has become established in Canada.”⁹⁷ Thus a clause explicitly referring to Mormons was inserted in the provision prohibiting polygamy and remained in the Criminal Code until it was amended in 1954.⁹⁸

The prohibition's ecclesiastical origins as well as its express reference to Mormons suggest that its pressing and substantial objective is to serve a religious purpose. Without doubt, the contemporary rationale for retaining the provision in the Criminal Code may be gender equality. However, the Supreme Court of Canada will not entertain shifting purposes, meaning that the government can rely only on the purpose that animated the provision when it was enacted.⁹⁹ Indeed, in a similar situation the Court refused to attach a contemporary objective to the Criminal Code prohibition against spreading false news after tracing its historical origins to 13th century England.¹⁰⁰ To overcome the rule against shifting purposes, Canada would have to show that its gender equality argument was not a shifting purpose, but rather a “permissible shift in emphasis”¹⁰¹ from that of the law's original religious purpose.

If the transformation from religious to secular objective was to prove insurmountable, Canada would be hard pressed to maintain that the religious objective of s. 293 is pressing and substantial. In its first religious freedom case, the Supreme Court of Canada held that the purpose of a federal Sunday closing law was “to compel the observance of the Christian Sabbath,” which directly contradicted the Charter right to freedom of religion, “and could not be a purpose that justified limiting the right.”¹⁰² Analogously, therefore, if the purpose of the prohibition against polygamy in s. 293 of the Criminal Code is to compel the Christian practice of monogamous marriage, it cannot be a purpose that justifies limiting the s. 2(a) Charterright to religious freedom of women who have legally entered into polygamous marriages in their country of origin and subsequently relocated to Canada.

If this counter-argument were upheld, the rights seekers would have successfully challenged the constitutionality of s. 293; the only remaining issue would be the remedy. In other words, there would be no need to develop the arguments pertaining to the remainder of the Oakes test. However, Canada's argument for gender equality as the pressing and substantial objective of s. 293 might prevail. If so, the Oakes test would require consideration of the three components of the second, or proportionality, criteria. Accordingly, there are three remaining questions. Is the criminal prohibition against polygamy and plural unions rationally connected to the objective of gender equality? Does it minimally impair religious freedom? And, is there proportionality between its deleterious and salutary effects?

Rational Connection

Canada would support the claim that prohibiting polygamy and plural unions is a rational means of reducing gender inequality by adducing evidence about the subordination of women in polygamous relationships. Anecdotal evidence is not difficult to find. Groups such as the Center for Public Education and Information on Polygamy (nd) have a Web site where they track polygamous practices around the world. Wives and daughters who have escaped polygamous marriages publish books about their experiences (Solomon 2003). As well, social science evidence from studies of Mormon communities in the United States exists, although this literature does not uniformly sustain the claim for a relationship between polygamy or plural unions and gender inequality.¹⁰³

The causal connection between polygamy or plural unions and women's subordination need not be established scientifically, however. In a decision impugning an advertising ban on tobacco products, the Supreme Court of Canada held that the causal connection between the ban and the objective of reducing tobacco consumption could be based on common sense, reason or logic.¹⁰⁴ Even such a relaxed approach to causation may not assist Canada's claim for the effectiveness of criminalizing polygamy. This is because, with the possible exception of Mormon plural unions, the connection between polygamy or plural unions and the subordination of women is both under- and over-inclusive. On the one hand, it is under-inclusive, because women's subordination is by no means unknown in marriages that are monogamous. On the other hand, the prohibition against polygamy and plural unions is over-inclusive, because not all polygamous marriages or plural unions subordinate women. To the contrary, whether women are subordinated depends on the prevailing religious beliefs about the relationship between the sexes. Some religions still proselytize men's domination; others no longer do so. Thus, criminalizing polygamy and plural unions seems to be an arbitrary approach to the problem of gender inequality, rather than one that is driven by the dictates of common sense, reason or logic.

Minimal Impairment

Canada must also demonstrate that using the criminal law to prohibit polygamy and plural unions does not unnecessarily restrict religious freedom. This requirement is one of minimal impairment. In other words, the government must argue that criminalizing polygamy and plural unions represents the least drastic means for achieving the government's objective, which is to reduce gender inequalities in marital relationships. This feature of the s. 1 test is not as easy for rights seekers to establish as it might otherwise appear, because courts often defer to legislative wisdom concerning alternative ways to achieve governmental objectives. However, the polygamy and plural unions ban is unusual insofar as crown attorneys seldom invoke it. Absent such prosecutions, there is no contemporary evidence establishing the consequences of criminalization. Under these circumstances, we do not know whether the criminal ban is effective, that is, whether it has any impact on women (or men) considering polygamous or plural union relationships, let alone whether such relationships would necessarily result in the subordination of women.

However, immigration and refugee cases and media stories tell us that banning polygamy has not stopped women who legally entered into actually polygamous marriages in their country of origin from applying to relocate in Canada. If they are successful, or indeed even if they merely visit Canada, it is hardly a minimal impairment of their Charter right to freedom of religion that they are vulnerable to being charged with an indictable offence, which carries a penalty of incarceration for up to five years. It could be argued that criminalization has a disproportionate effect on immigrants and serves to further entrench social, class and economic stratifications. 

Because Canada's marriage laws are sufficient to achieve the objective of denying legal recognition to plural unions, it is difficult to avoid the conclusion that criminalization is excessively punitive in regard to such unions. Women who face physical or mental abuse in any relationship, whether monogamous or polygamous, have now and would continue to have access to the general Criminal Code provisions that prohibit such harms.

Deleterious/Salutary Effects

If Canada were to meet the pressing and substantial objective, rational connection and minimal impairment criteria for justifying the criminal prohibition on polygamy and plural unions, what would remain “is a balancing of the objective sought by the law against the infringement of the civil liberty. It asks whether the Charter infringement is too high a price to pay for the benefit of the law” (Hogg 1997: 35-39). The Supreme Court of Canada refined this requirement to one of considering not only the objective of the law but also its salutary effects.¹⁰⁵ In the context of the polygamy and plural unions ban, the issue is whether the risk of harm to women justifies the costs to freedom of religion.

What Remedy Would Be Available?

The challengers would seek to have s. 293 of the Criminal Code declared unenforceable by invoking s. 52(1) of the Constitution Act 1982, which provides: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”¹⁰⁶

When the Supreme Court of Canada set out the six remedies available under s. 52(1), the first possibility was nullification, that is, striking down (declaring invalid) the statute that is inconsistent with the Charter.¹⁰⁷ While Canada would oppose this remedy, it is unlikely to express a preference for any of the others (i.e., temporary validity, severance, reading in, reading down or constitutional exemption). Accordingly, the result of a successful Charter challenge would be nullification, which is tantamount to decriminalization.

Recommendation 6: Criminalization is not the most effective way of dealing with gender inequality in polygamous and plural union relationships. Furthermore, it may violate the constitutional rights of the parties involved. Canada should repeal the prohibition against polygamy and plural unions in s. 293 of the Criminal Code.