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

Separate and Unequal: The Women and Children of Polygamy

ENDNOTES

¹ Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982 c. 11.

² R.S.C. 1985, c. C-46

³ Smyth (1992): "Charges will not be laid against a religious splinter group that practices polygamy because the relevant section of the Criminal Code is unconstitutional, the B.C. Attorney General's Ministry said Thursday."

⁴ A sealing is a covenant between a man and a woman, outside of a traditional, civil marriage, to be faithful to each other for eternity beyond physical death.

⁵ R.S., c. C-34, s. 257.

⁶ See, for example, R. v. Haugen, [1923] 2 W.W.R. 709 (Sask. C.A.); R. v. Moore, [2001] O.J. No. 4513 (Prov. Ct.) (QL); R. v. Moustafa, [1991] O.J. No. 835 (Prov. Ct.) (QL).

⁷ R. v. Tolhurst and Wright, [1937] O.R. 570 (Ont. C.A.).

⁸ State v. Green, 518 Utah Adv. Rep. 30 (Utah Sup. Ct. 2005).

⁹ State v. Green, 507 Utah Adv. Rep. 45 (Utah Sup. Ct. 2004).

¹⁰ Yew v. British Columbia (Attorney General), [1924] 1 D.L.R. 1166 (B.C.C.A.).

¹¹ Yuen Tse v. Minister of Employment and Immigration, [1983] 2 F.C. 308 (C.A.).

¹² Re Hassan & Hassan (1976), 12 O.R. (2d) ( Prov. Ct. ).

¹³ Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1640 (T.D.).

¹⁴ Immigration and Refugee Protection Regulations SOR/2002-2270, s. 117(9)(c).

¹⁵ Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221 at 223, Eur. T.S. 5.

¹⁶ Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 at ¶57-8. See also: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (QL) and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

¹⁷ Convention on the Rights of the Child, GA res. 44/25, annex, 44 UN GAOR Supp (No. 49) at 167, UN Doc. A/44/49 (1989), entered into force September 2, 1990.

¹⁸ Convention on the Elimination of All Forms of Discrimination against Women, March 1980, C.T.S. 1982/31; 19 I.L.M. 33.

¹⁹ There were some exceptions, however. For example, even if it occurred in private, there were criminal sanctions for gay sex. Also, the activities of people of lower incomes were often scrutinized more than those of the upper class and the autonomy of poorer persons was not respected to the extent accorded to the upper class.

²⁰ Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

²¹ Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.

²² Law, supranote 21 at 524.

²³ Law, supranote 21 at 525.

²⁴ R v. Red Hot Video Ltd. (1985), 18 C.C.C. (3d) 1 (B.C.C.A.), leave to appeal to S.C.C. refused (1985), 46 C.R. (3d) xxv.

²⁵ Some examples are the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on Economic, Social and Cultural Rights and the International Convention on Civil and Political Rights.

²⁶ Convention on the Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981.

²⁷ McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 240.

²⁸ Law, supra note 21 at 548.

²⁹ Law, supra note 21 at 530.

³⁰ According to Statistics Canada, in 2004, of just under 32 million Canadians, of which about 24 million are over age 19, approximately 15.5 million are married, separated or living common law. See Statistics Canada (nd).

³¹ For a contemporary analysis of the ongoing harms of Canadian family law on First Nations women, see Monture-Angus (1999: 76-97).

³² Edwards v. Canada (Attorney General), [1930] A.C. 124 (J.C.P.C.).

³³ M. v. H., [1999] 2 S.C.R. 3 at 57.

³⁴ R. v. Butler, [1992] 1 S.C.R. 452 at 498.

³⁵ Ibid. at 504.

³⁶ R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571.

³⁷ Ibid. at ¶173 and ¶215.

³⁸ Ibid. at ¶129.

³⁹ Ibid. at ¶114.

⁴⁰ The Supreme Court of Canada upheld the constitutionality of the defence provided under this section in Canadian Foundation for Children Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76.

⁴¹ RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199.

⁴² Ibid. at ¶44.

⁴³ Malmo-Levine, supra note 36 at ¶140.

⁴⁴ Similar concerns have been expressed regarding the equality implications of the Ontario government's recent debate about whether it will permit civil disputes, such as divorce to be mediated under Sharia, or Islamic law. See for example, Christopher (2004).

⁴⁵ See for example, R. v. Lavallee, [1990] 1 S.C.R. 852.

⁴⁶ Vazquez (2001-2002: 248). See also Bozzuti (2004).

⁴⁷ This paper does not examine the positive or negative social implications of polygamous relationships from other cultures, but instead focusses on the Canadian experience of polygamy in open polygamous communities, such as Bountiful.

⁴⁸ For instance, see Estate Administration Act, R.S.B.C. 1996, c. 122.

⁴⁹ Reference re Same-Sex Marriage [2004] 3 S.C.R. 698.

⁵⁰ (1866) L.R. 1 P&D 130 at 133. Followed in Lim v. Lim, [1948] 1 W.W.R. 298 (B.C.S.C.).

⁵¹ These unions have only been recognized for the limited purposes of finalizing a legal dispute, such as the rights when a man has two widows in a will's dispute. For instance, Yew, supra note 10.

⁵² See for instance, Ali, supra note 13.

⁵³ A.A. v. B.B., [2003] O.J. No. 1215 (S.C.) (QL).

⁵⁴ See, for example Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 (QL).

⁵⁵ Adult Interdependent Relationships Act S.A. 2002, c. A-4.5.

⁵⁶ Ibid. at s.10(c).

⁵⁷ Ibid. at s.(2)(c).

⁵⁸ Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 8(1).

⁵⁹ Ibid. s. 8(2).

⁶⁰ Ibid. s. 11(1)(c).

⁶¹ An additional problem arises with respect to when the limitation period would start to run: presumably upon the date of legal marriage to the second wife.

⁶² See AIRA, supra 55; Divorce Act, supra 58; and Matrimonial Property Act, R.S.A. 2000, c.M-8.

⁶³ Children can make a claim for support or maintenance under any number of statutes. See for instance, Parentage and Maintenance Act, R.S.A. 2000, c. P-1.

⁶⁴ See, for example, Hofer v. Hofer, [1970] S.C.R. 958 and Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165.

⁶⁵ Walter v. Attorney General of Alberta, [1969] S.C.R. 383.

⁶⁶ Lakeside, supra note 64 at 179-82.

⁶⁷ For instance see, Family Relations Act (R.S.B.C. 1996), c. 128; Child Support Guidelines Regulation B.C. Reg. 61/98.

⁶⁸ BC (1993: 10). See also Re L.A.M., [1978] A.J. No. 531 ( Prov. Ct. ), where the court held that children of a polygamous family were neglected and subjected to an unhealthy environment. They were committed to child welfare custody.

⁶⁹ AIRA, supra note 55at subs. 1(2).

⁷⁰ See for example Income and Employment Supports Act, S.A. 2003, c. I-0.5; Income Supports, Health and Training Benefits Regulation Alta. Reg. 60/2004, s. 1.

⁷¹ Employment and Assistance Act, R.S.B.C 2002, c. 40; Employment and Assistance Regulation B.C. Reg. 263/2002.

⁷² See for instance, Falkiner v. Ontario (Ministry of Community and Social Services, (2002),59 O.R. (3d) 481 (C.A.).

⁷³ BC (1993: 28) reported that women are mostly given tasks around the house while men are supposed to be the primary providers. However, some women do work in community schools.

⁷⁴ Income Tax Act, R.S.C. 1952, c. 148.

⁷⁵ Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at 261-2.

⁷⁶ Orwell (1946). The actual quotation from this allegory of an animal revolution gone wrong is: "All animals are equal but some animals are more equal than others." (p. 118).

⁷⁷ [1998] 1 S.C.R. 493.

⁷⁸ [1997] 3 S.C.R. 624.

⁷⁹ [2001] 3 S.C.R. 1016.

⁸⁰ Ibid. at ¶19.

⁸¹ Ibid. at ¶28.

⁸² Ibid. at ¶20.

⁸³ Ibid. at ¶24.

⁸⁴ Ibid. at ¶¶28-29.

⁸⁵ Vriend, supra note 77 at ¶60.

⁸⁶ R. v. Morgentaler (1988), 44 D.L.R. 4^th 385 (S.C.C.).

⁸⁷ Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657.

⁸⁸ See for example, Rachin (1997).

⁸⁹ [1986] 1 S.C.R. 103.

⁹⁰ Dunmore, supra note 79 at ¶49.

⁹¹ Ibid.

⁹² Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. III. No. 5.

⁹³ Brown (2000: ¶18). See also Doyle (1984); Samur v. City of Quebec, [1953] 2 S.C.R. 299; Boucher v. The Queen, [1951] S.C.R. 265; Chaput v. Romain (1955), 1 D.L.R. (2d) 241 (S.C.C.) and Roncarelli v. Duplessis, [1959] S.C.R. 121.

⁹⁴ Two leading cases dealing with education and religion, will not be discussed further: Zylberg v. Sudbury Board of Education (Director) (1988), 52 D.L.R. (4^th) 577 (Ont. C.A.); Adler v. Ontario, [1996] 3 S.C.R. 609.

⁹⁵ R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 at ¶¶94 and 95.

⁹⁶ See: Ross v. New Brunswick School District No. 15 (1996), 133 D.L.R. (4^th) 1 (S.C.C.); and Jones v. The Queen, [1986] 2 S.C.R. 284.

⁹⁷ Beaudoin and Ratushny (1989). See also Jones, supra note 96 wherein the Supreme Court of Canada (per LaForest J.) said that the rights guaranteed under the Charter are not absolute and that their protections are subject to "the limits of reason" (at 300 (cited to S.C.R.)).

⁹⁸ R. v. Edwards Books and Arts Ltd., [1986] 2 S.C.R. 713.

⁹⁹ Ibid. at ¶97.

¹⁰⁰ Ibid.

¹⁰¹ Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551.

¹⁰² R.S.Q., c. C-12.

¹⁰³ Amselem, supra note 101 at ¶39.

¹⁰⁴Ibid. at ¶40.

¹⁰⁵ Ibid. at ¶51.

¹⁰⁶ Ross, supra note 96 at ¶71. See also Jones, supra note 96.

¹⁰⁷ Ross, supra note 96 at ¶56. This may be contrasted with the development of freedom of religion in the United States. See below.

¹⁰⁸ R. v. W.H. Smith Ltd. et al (1983), 26 Alta. L.R. (2d) 238 ( Prov. Ct. ).

¹⁰⁹ Ibid. at 258.

¹¹⁰ Edwards Books, supra note 98 at 759.

¹¹¹ Ibid. at 761.

¹¹² Adopted December 16, 1966, entered into force March 23, 1976, GA Res. 2200 (XXI), 21 UN GAOR, Supp. (No. 16) 52, UN Doc.A/6316 (1966) [ICCPR].

¹¹³ Big M Drug Mart, supra note 95 at 337.

¹¹⁴ R. v. Videoflicks (1984), 48 O.R. (2d) 395 (C.A.), rev'd in part (sub nom. Edwards Books & Art Ltd. v. R.) supra note 98.

¹¹⁵ Ibid.

¹¹⁶ U.S. Const. Amend. I.

¹¹⁷ United States v. Ballard, 322 U.S. 78 (1944). Indeed the court focusses on the sincerity of the belief and not its merits. See: Fowler v. Rhode Island, 345 U.S. 67 (1953) and United States v. Seeger, 380 U.S. 163 (1965).

¹¹⁸ A more limited approach to "religion" was taken in Borchert v. City of Ranger Texas, 42 F. Supp. 577 (1941) and Minersville School Dist. v. Gobitis, 108 F. 2d 683 (1939), both of which seem to require a belief in a Creator or God.

¹¹⁹ 58 Cal. 457 at 512 (1881).

¹²⁰ Sealing (2001). It should be noted that Sealing does not discuss the criminal law interests of the state; he focusses on the civil law complications of allowing polygamy. See also Gillett (1999-2000).

¹²¹ It should be noted that this material was written before the facially neutral test was developed.

¹²² Big M Drug Mart, supra note 95 at 346.

¹²³ Amselem, supra note 101 at ¶62.

¹²⁴ Ibid. at ¶62.

¹²⁵ Ibid. at ¶82.

¹²⁶ [2004] 2 S.C.R. 650.

¹²⁷ Ibid. at ¶67.

¹²⁸ Ibid. at ¶69.

¹²⁹ [1995] 1 S.C.R. 315.

¹³⁰ Ibid. at ¶¶108-109.

¹³¹ Ibid. at ¶226.

¹³² Ibid. See also: P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; Young v. Young, [1993] 4 S.C.R. 3.

¹³³ Horwitz (1996). See discussion of United States jurisprudence in Appendix A.

¹³⁴ Peter and Hutchinson (1988-89: 542). An example of a case involving this conflict (equality vs. liberty) is R. v. Red Hot Video Ltd., supranote 24, where the British Columbia Court of Appeal held that the obscenity provision of the Criminal Code was justified and did not contravene the right to freedom of expression because the form of expression it prohibited was demeaning to women and therefore undermined gender equality rights.

¹³⁵ June 25, 1993, A/CON.157/23.

¹³⁶ [1994] 3 S.C.R. 835.

¹³⁷ Ibid. at 877.

¹³⁸ Ibid.

¹³⁹ Epp Buckingham (2001: 477). See also Von Heyking (2000: ¶51) where he says that it is unclear how the Supreme Court of Canada will resolve conflicts between equality rights and freedom of religion.

¹⁴⁰ Ross, supra note 96 at ¶74.

¹⁴¹ Ibid. at ¶75.

¹⁴² [2001] 1 S.C.R. 772.

¹⁴³ Ibid. at ¶29.

¹⁴⁴ Ibid. at ¶31.

¹⁴⁵ Ibid. at ¶34.

¹⁴⁶ Ibid. at ¶36.

¹⁴⁷ Ibid.

¹⁴⁸ Same-Sex Reference; Halpern v. Canada (Attorney General) (2003), 65 O.R. (3d) 161 (C.A.).

¹⁴⁹ Ibid. at ¶15.

¹⁵⁰ Ibid. at 720.

¹⁵¹ Ibid. at 720-1.

¹⁵² LRC (1985: 22-23). See also Gold and Young (1994).

¹⁵³ Kazi Hamid, Criminal Law Issues Involving Religion and Conscience as cited in Etherington (1994: ¶4.2.2.3).

¹⁵⁴ Code, supranote 2ss. 46 to 48.

¹⁵⁵ State v. Green, supra notes 8 and 9.

¹⁵⁶ Ibid. at ¶40 (2004).

¹⁵⁷ Presumably in polygamous relationships not involving religion, the potential Charter challenges might involve Charter s. 7; however, this is not the subject of this paper.

¹⁵⁸ Dunmore, supra note 79 at ¶49.

¹⁵⁹ Ibid.

¹⁶⁰ [1992] 1 S.C.R. 452.

¹⁶¹ R. v. Keegstra, [1990] 3 S.C.R. 697.

¹⁶² Section 27 of the Charter states: "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."

¹⁶³ [1988] 1 S.C.R. 122.

¹⁶⁴ See for example, R. v. Lewis, [1996] B.C.J. No 3001 (S.C.) (QL).

¹⁶⁵ This analysis does not address whether s. 293 might offend other sections of the Charter, such as Charter s.7, for example, because it is too vague.

¹⁶⁶ For a criticism of the holding in the case, see Arneson and Shapiro (1996).

¹⁶⁷ Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) at 546.

¹⁶⁸ Reynolds v. United States, 98 U.S. 145 (1978) at 164-66. On the other hand, Donovan (2002: 578) argued that it is despotic rulers who use their power to accumulate women (polygyny) and perhaps wives (polygamy).

¹⁶⁹ Reynolds ibid. at 165.

¹⁷⁰ Ibid. at 166.

¹⁷¹ Late Corporation of the Church of Jesus Christ of Later-Day Saints v. United States, 136 U.S. 1 (1890)at 50.

¹⁷² White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825 (1810).

¹⁷³ Cleveland v. United States, 329 U.S. 14 (1946)at 19.>

¹⁷⁴ Ibid.

¹⁷⁵ Potter v. Murray City, 760 F.2d 1065 at 1070 (D. Utah 1984).