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

IV. WOULD EXPANDED RECOGNITION OF FOREIGN MARRIAGES OR DECRIMINALIZATION OF POLYGAMY AND PLURAL UNIONS LEAD TO LEGALIZATION OF THE CELEBRATION OF POLYGAMOUS MARRIAGES IN CANADA?

No Necessary Connection Between Recognition of Foreign Marriages or Decriminalization and Domestic Law

Extending further recognition to foreign polygamous marriages does not imply condonation of the practice of polygamy. Rather it gives effect to the principle of universality of status. Nor does decriminalization of polygamy and plural unions imply condonation of the practice of polygamy. Rather, it recognizes the limitations of criminal law in addressing the harms associated with the practices and gives effect to the Charter rights of parties to such relationships. These recommended law reforms do not carry the implicit suggestion that this country's domestic laws should be amended to permit polygamous marriages to take place in Canada. However, the question of whether polygamous marriages should be permitted to take place in Canada may be seen as linked to such law reforms and is addressed in this section.

The British Columbia Law Institute (1998) issued a report on proposed domestic partner legislation. One possibility canvassed briefly by the Institute, and supported by a minority of its members, was that of domestic partnerships comprising more than two persons. The rationale for creating a multiple domestic partnership scheme was to expand the range of choices and better address the needs of British Columbians.

An issue that received a great deal of consideration was whether it was necessary to restrict domestic partnership to two people. A significant minority of the board was in favour of allowing a person to have more than one domestic partner because it would serve the needs, for example, of a family unit consisting of a brother and sisters, each wishing to ensure that various entitlements, such as employment benefits, would be equally available to all. It was agreed, however, that this was an issue that might be reconsidered in the future after there has been some experience with domestic partner declarations (BC Law Institute 1998: 12).

A multiple domestic partnership would be a newly created institution, unconnected with any religious history or practice, and therefore would not carry the same “baggage” as polygamy. Multiple domestic partnerships could be crafted to protect the fundamental values of Canada. There does not seem to be much demand for multiple domestic partnerships, however, so it is unsurprising that the British Columbia Law Institute did not develop this idea more fully.

While there seems to be no demand for a strictly secular institution of multiple domestic partnerships, there may be some demand for polygamy from those whose religions support the practice. Should Canada consider permitting such parties to enter into polygamous marriages? Would such an accommodation of religious practices be the logical outgrowth of Canada's commitment to multiculturalism and freedom of religion? Would it be possible to permit polygamy while maintaining gender equality and other fundamental values of Canadian society?

Parkinson (1994: 503) has argued that “the importance of preserving the inherited cultural values of the majority must be balanced against the effects of such a law on the minority's capacity for cultural expression.” For Parkinson (1994: 503),

an insistence upon preserving marriage as a monogamous institution would be more compelling if the Christian understanding of marriage were preserved by the law in other respects, and other marriage-like relationships were not given legal recognition. However, the widespread acceptance of de facto relationships which involve no promises of lifelong commitment, and their recognition by law for a multitude of purposes, undermines any claim that the law seeks to uphold Christian values[.] Homosexual relationships are also recognised for a small number of purposes in Australian law.

Parkinson (1994: 499) also suggested that “it would be possible to frame a law recognizing polygamy which took account of the need for gender equality.” Parkinson (1994: 499) contended that “the law would need to be gender-neutral…and would require the full and free consent of the first marriage partner.” He (1994: 499) suggested:

One approach would be to require the consent of the Family Court to a polygamous marriage, after an enquiry, assisted by the Family Court Counselling Service, to ensure that the parties to the initial marriage and to the new marriage gave a full and free consent, and that the marriage was justified by the cultural practices of the ethnic group to which one or more of the parties belonged.

Parkinson (1994: 477) did not elaborate on this last restriction, even though it seemed inconsistent with his earlier reference to “the principle, which is a fundamental premise of western legal systems, that all members of society should be governed by the same laws.”

Canadians are free to practise any religion or to have no religion at all, and this freedom is guaranteed by the Charter.¹⁰⁸ However, the law does not enforce the religious doctrine of any religion, and religious laws have no legal status in Canada. Religious practices must exist within Canadian laws. The notion that freedom of religion or the principle of equality should include the right to have one's civil status determined in accordance with religious law has never been accepted in Canada. However, in some states, matters of family and succession law are governed by “personal law” in the sense of the laws relating to one's tribe or religion, rather than by the civil law. In India, where matters of family and succession law are governed by the laws of one's religion, the system has led to controversy and has been called into doubt by the Supreme Court. In Vallamattom v. Union of India, Chief Justice Khare said in reference to the articles that guarantee freedom of religion:

[M]arriage, succession and like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. It is a matter of regret that Article 44 of the Constitution [which anticipates the creation of a common civil code and the abandonment of religious laws] has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing contradictions based on ideologies.¹⁰⁹

In the United Kingdom, a proposal to establish a separate system of Muslim family law was rejected in favour of a secular universal system to uphold human rights, particularly gender equality (Fournier 2004: 21). The South African Law Reform Commission (2003), on the other hand, proposed to legalize polygamous (“Muslim”) marriages and to establish a separate system of Muslim family law. The Commission's report indicated that its recommendation was controversial, in part because Islamic groups disagreed on the content of the proposed law. There was no general acceptance as to how to incorporate Islamic marriage laws into the existing civil system while at the same time protecting the basic values of the state, including gender equality. The diversity of religions that support polygamy would also pose a challenge to anyone attempting to incorporate religious (Islamic or otherwise) norms into Canadian law. As the Canadian Council of Muslim Women (2004) has said, “Muslim law is not monolithic, nor simple, nor applied consistently across the world.”

Even the issue of whether polygamy should be legalized in this country is a matter on which there is a diversity of views within the relevant religious communities. Both the president of the Canadian Muslim Association and senior members of Britain's Muslim community, for example, affirmed that that there was no demand coming from within these communities to legalize polygamy within Canada or the United Kingdom (Smith 2004). In Britain, members of the Muslim community are trying to reduce the number of polygamous relationships and advising against religious marriages that are not legally valid. Guidelines issued last year by the Muslim Parliament advised against weddings ratified only through Islamic ceremonies. These Guidelines stated: “No Muslim should seek to contract a marriage without the full protection of the law of the land,” and that the “[p]ersons most likely to be harmed by avoiding the civil registration would be the wives, who would only then have the status in the UK of unmarried ‘partners'- a status forbidden in Islam. The children would be illegitimate. No Muslim man should wish to put his spouse or offspring in such a dishonourable position” (Smith 2004).

At least among the Muslim community, the context for the practice is critical to justifying polygamy. As Dr. Ghayasuddin Siddiqui, leader of the Muslim Parliament, said: “In my view, in this country there are absolutely no reasons why people would have more than one wife” (Smith 2004).

Amending marriage law, to incorporate personal laws connected to one's religious affiliation, would be inconsistent with Canada's history and values. It would also run counter to the increasingly secular nature of marriage in Canada. This trend is reflected in the laws relating to solemnization of marriage by secular officials (Arnup 2001: 8-14), amendments to the law relating to the prohibited degrees of consanguinity and affinity that abandon religious norms,¹¹⁰ and the opening up of marriage to same-sex couples. Estin (2004) discussed the religious roots of the current secular marriage law in the United States, and her thesis that marriage no longer carries a religious character is applicable to Canada. In Beyond Conjugality, the Law Commission of Canada (2001) commented: “The history of marriage regulation in Canada has thus been characterized by a progressive uncoupling of religious and legal requirements, reflecting a growing emphasis on the separation of church and state in a secular and pluralistic political community.”

In the Reference re Same-sex Marriage, the Supreme Court of Canada noted that the notion of “Christian” marriage enunciated in Hyde v. Hyde was no longer relevant. “Hyde spoke to a society of shared social values where marriage and religion were thought to be inseparable. This is no longer the case. Canada is a pluralistic society. Marriage, from the perspective of the state, is a civil institution.”¹¹¹ It should also be noted that one recent survey showed that a large majority of Canadians (96 percent) disapprove of polygamy (Bibby 2005).

Possible Constitutional Challenges

As with other western countries, Canada has defined marriage as a relationship between one man and one woman. As mentioned earlier, the definition accepted in Canada since 1866 has been “the voluntary union of one man and one woman, to the exclusion of all others.”¹¹² The requirement that parties be of the opposite sex was successfully challenged as a violation of the Charter guarantee of equality.¹¹³ In 2004, the Supreme Court ruled that a bill to open up civil marriage to same-sex couples was constitutional.¹¹⁴ This jurisprudence has occasioned some speculation about the possibility of using the Charter to challenge the constitutionality of restricting the capacity to marry in Canada to monogamous unions.¹¹⁵

A Charter challenge could be brought against the common-law definition of marriage, which was successfully impugned in the same-sex marriage cases,¹¹⁶ or, were it to become law, the statutory definition of marriage proposed in the Civil Marriage Bill,¹¹⁷ or the Divorce Act, which does not extend “matrimonial relief” to parties to a polygamous marriage,¹¹⁸ or to the regulations to the Immigration and Refugee Protection Act, which allow visa officials to refuse to consider polygamous marriages.¹¹⁹ As well, if a person were refused a marriage licence, or a divorce, or permanent residence on the grounds of being a party to an actual (or pending) polygamous marriage in Canada, the refusal would constitute the basis for standing to launch a Charter challenge.

The issue of which Charter rights might be infringed by limiting the civil status of marriage to monogamous unions is rich with possibilities. Ironically, the right most often cited in this context - the Charter s. 2(a) right to freedom of religion - should not be counted among these possibilities. Section 2(a) would be very relevant to a Charterchallenge to the criminal ban on polygamy. If such a challenge were successful, it would remove the sole obstacle to the religious practice of polygamous marriage. That is, religions that permit polygamy would be able to perform marriages for polygamous adherents. Their freedom to use religious rites to sanction polygamous marriages would no longer be impeded in any way by the state. However, these religions would not be entitled to bestow the civil status of marriage on polygamous unions. Civil status is by definition subject to political, not religious, decision making. Thus, decriminalization would permit religious celebration but not civil recognition of polygamous marriages.

The rights most likely to be invoked by parties seeking to challenge the constitutionality of defining civil marriage as monogamous are guaranteed in ss. 7 and 15(1) of the Charter. Section 7 provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”¹²⁰ The right to liberty is the most likely basis for this challenge. The Supreme Court of Canada has ruled that liberty is not restricted to “mere freedom from physical restraint”; rather it may also apply when the law prevents a person from making “fundamental personal choices.”¹²¹ In Canada today, it is difficult to conceive of a more fundamental personal choice than whom one chooses to marry.

Section 15(1) of the Charter, the equality guarantee, provides: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”¹²² Parties challenging the prohibition on polygamous marriages might invoke as many as five different grounds of discrimination. Because foreign polygamous marriages are recognized as valid in Canada, at least for some purposes, residents refused marriage licences for pending polygamous marriages could argue citizenship or marital status discrimination. Section 15(1) makes no reference to citizenship or to marital status. However, the Supreme Court of Canada has ruled that citizenship and martial status are analogous grounds of discrimination.¹²³

Challengers could also invoke several of the enumerated grounds of discrimination, in particular national or ethnic origin discrimination and religious discrimination. Neither of these grounds of discrimination has been the basis of a successful Charter challenge to date.¹²⁴ However, this does not necessarily portend defeat for parties who would use section 15(1) to challenge the definition of marriage. Rather each case must be decided on the basis of its own set of facts.

It may also be possible to challenge the definition of marriage on the basis of sex discrimination. Specifically, some women may be parties to religious polygamous marriages that are not recognized under Canadian law. Such women may not have the power to end their religious marriages without their husbands' consent. For example, the teachings of Islam give the natural right of divorce exclusively to the husband.¹²⁵ Islam also provides alternative methods of divorce: the “mutually consensual khul' generally entails a certain amount of remuneration from the wife to the husband (usually her mahr) while judicial dissolution (faskh) involves an assessment of blame by the outside arbiters in order to determine the financial rights of each spouse” (Quraishi and Syeed-Miller nd). However, without mutual consent and approved grounds,¹²⁶ a wife could not access these methods. In the absence of a legally recognized marriage, she would not be able to terminate her religious polygamous marriage under the Divorce Act. Thus, she might argue that the state's failure to provide a termination mechanism compounds the original religious discrimination on the ground of sex, thereby denying her closure and dignity. A s.15(1) precedent exists wherein the Supreme Court of Canada ordered the rectification of a legislative omission.¹²⁷

There are two important reasons for caution in predicting the outcome of any s.15(1) equality challenge. One arises because the Supreme Court of Canada has made it more difficult to establish a violation of s.15(1) than any other provision of the Charter. A breach of s.15(1) requires affirmative responses to the following three broad inquiries.

First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage?¹²⁸

The other cautionary note is more pragmatic. A recent study of s. 15(1) jurisprudence revealed that equality seekers lost 80 percent of the first 44 Charter equality rights decisions rendered by the Supreme Court of Canada (Martin 2001: 370-1). Moreover, 70 percent of these losses occurred at the s. 15(1) stage, with proof of discrimination being the most difficult hurdle to overcome (Martin 2001: 306).

If necessary, Canada would invoke s. 1 of the Charter to justify the limitation of marriage to two persons. Were the government to suggest that marriage is monogamous, because it always has been monogamous, it might meet the same response as was delivered by the Ontario Court of Appeal in one of the same-sex equality cases, namely that such a statement “is merely an explanation for the [monogamous] requirement of marriage; it is not an objective that is capable of justifying the infringement of a Charter guarantee.”¹²⁹ Similarly, were Canada to argue that the purpose of marriage is to unite two persons, one response might be that “a purpose that demeans the dignity of [religious polygamists] is contrary to the values of a free and democratic society and cannot be considered to be pressing and substantial.”¹³⁰

Canada would have a better chance of justifying the limitation of marriage to two persons by characterizing the objective in terms of social stability and order. To the extent that this objective reduces the debate to utilitarian considerations, it may not be available to limit a Charter right.¹³¹ The Supreme Court of Canada recently rejected claims of cost and administrative expediency as limits on equality rights.¹³² However, if Canada were to demonstrate that the costs of including polygamy would be so high as to be prohibitive, the federal government might succeed in justifying the limit on a Charter right.¹³³ Alternatively, if the cost of complying with a Charter right is high but not prohibitive, that could be a basis for fashioning a remedy that spread compliance over an extended time period.

The most compelling objective that Canada could adduce for the limitation of marriage to two persons is that polygyny demeans women. This objective is secular. It is consistent with the values of a free and democratic society. And, it is sufficiently pressing and substantial to justify infringing Charter rights. Moreover, in support Canada would cite its commitment to the UN Convention on the Elimination of All Forms of Discrimination against Women. According to the U.N. Committee on the Elimination of Discrimination against Women, states that permit polygamy are in contravention of their obligation to protect women's equality rights (UNCEDAW 1992: 1).

To meet the three requirements of the proportionality test, Canada would argue that the limitation of marriage to two persons is rationally connected to the objective of protecting women; that it impairs rights no more than is necessary to achieve this objective; and that it does not have a disproportionately severe effect on the rights seekers. In other words, these three components require Canada “to balance the interests of society with those of individuals and groups.”¹³⁴ A number of other countries, some with similar histories and value systems, have already performed this balancing process. Thus, Canada is likely to draw on their experience to sustain its contention that omitting polygamy is a justifiable limit on equality rights.

In particular, the Australian Law Reform Commission (ALRC), in its 1992 Report on Multiculturalism and the Law, concluded that polygamous marriages should not be permitted to take place in Australia. The ALRC acknowledged that

within the Muslim community, a polygamous marriage may be acceptable and that marrying polygamously is more acceptable to members of that community than entering a de facto relationship while still legally married. It also acknowledges as anomalous the Australian law that makes a second marriage a criminal offence but, in some circumstances, treats a de facto relationship in the same way as a marriage even if one or both parties is legally married or in another de facto relationship. Recognising the legal status of polygamy would, however, offend the principles of gender equality that underlie Australian laws. There is very little support for the recognition of polygamy in the Australian community. The Commission does not recommend that the law should be changed to allow a polygamous marriage contracted in Australia to be recognized as a valid marriage (p. 94).

Responding to the Australian Law Reform Commission report, Parkinson (1994: 504) noted there were divisions of opinion within the Islamic community in Australia. In particular the Australian Federation of Islamic Councils did not call for the recognition of polygamy, stating that it was not a major issue for the Islamic community in Australia. Moreover, “[i]n other parts of the world, the incidence and acceptance of polygamy has declined with women's increasing assertion of their rights [citing Turkey and Pakistan]. Polygamy may thus be a fading institution in many parts of the world, fighting a losing battle with modernity” (Parkinson 1994: 504). Thus, Parkinson (1994: 504) concluded: “In the case of polygamy, the case for recognition is not strong enough at the present time, to justify a further undermining of society's commitment to the preservation of monogamous marriage.”

Ironically, the effect of balancing gender equality against religious equality - as was done in Australia, the United Kingdom, and South Africa - is to portray religious communities (and not simply polygamy) as subordinating women. Shachar wrote about the vulnerability of women that results from accommodating the claims of religious communities to control matters, such as family law. Characterizing the situation as a “multicultural dilemma concerning the potential injurious effects of intergroup accommodation upon intragroup power relations,” Shachar labelled it as the “paradox of multicultural vulnerability.”¹³⁵

However, this paradox is not the only one that would surface if Canada sought to justify the limitation of marriage to two persons. At the stage of balancing the salutary effects of this omission against its deleterious effects, women trapped in religious polygamous marriages that are not legally recognized could point to their own lives to exemplify the deleterious effects of being denied access to divorce which is one of the important incidents of the civil status of marriage. From their perspective, in other words, the proportionality issue should be measured entirely in terms of the effects - both salutary and deleterious - on women. They would undoubtedly share the view of Nathalie Des Rosiers, then president of the Law Commission of Canada, who told Parliament, “It's not in the interests of the people in a polygamous marriage - even what I would call the victims - to have their union not recognized, because they cannot benefit from the protection that marriage gives.”¹³⁶

Recommendation 7: A constitutional challenge may be brought to the limitation of marriage to two persons. Canada should prepare for such a challenge, including one that may be based on sex discrimination and initiated by women trapped in religious polygamous marriages.