Publications

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

EXECUTIVE SUMMARY

According to s. 293 of the Criminal Code of Canada, it is illegal for people to practise polygamy, which is a type of matrimonial or conjugal union involving multiple spouses. Under s. 293, not only is any form of polygamy illegal, but any type of polygamous union that purports to result from a rite of polygamy is illegal. Despite this prohibition, there is a community of polygamists in British Columbia called Bountiful which, to date, the authorities in British Columbia have refrained from prosecuting. This community practises polygyny (the men having more than one wife). The apparent rationale for the non-prosecution of polygamy practised by Bountiful members has been a belief that s. 293 would not withstand a challenge under the freedom of religion provision, s. 2(a), of the Canadian Charter of Rights and Freedoms.

This paper analyzes whether the anti-polygamy provision in the Criminal Code could be argued to impinge on the freedom of religion of the residents of Bountiful and whether the harms associated with polygamy are significant enough to justify a limitation on freedom of religion. The paper is divided into two major sections. Part I briefly addresses the historical and current practice of polygamy. The fundamental principles that underlay this paper's analysis are also identified (i.e., rule of law, equality and the prevention of harm).

Part I briefly addresses the history of polygamy, with emphasis on the North American context. While polygamy is practised in many countries throughout the world, as practised in Bountiful, polygamy creates a potential conflict between two very important values in Canada: individual freedom of choice and formal equality. These normative values are embedded as rights in the Charter. While it may be argued that an individual has the right to live a polygamous lifestyle, the practice may harm women and children's formal equality to such an extent that it should be prohibited.

To further elaborate on the harm associated with polygamy, Part I also examines the social and legal implications of de facto or full legal recognition of polygamy. The de facto recognition of polygamy, let alone formal legalization of the practice, would invite a situation that carries the potential for enormous challenges in terms of rewriting a whole array of laws that include how property is divided on marital breakdown, child custody and support, and the devolution of property on the death of a spouse.

Part I also looks at the implications of not prosecuting polygamy in light of the equality provision of the Charter, subs.15(1), and addresses whether the practice of polygamy is inherently harmful from the perspective of the equality rights of women and children. We conclude that by not prosecuting s. 293 of the Code, justice officials are in effect complicit in denying women and children living in polygamous families in Bountiful their full rights as citizens. The effect of not prosecuting s. 293 would seem to be, arguably, a de facto acceptance of polygamy by the authorities responsible for the enforcement and administration of justice.

To prosecute under s. 293 would necessarily entail difficulty from an evidentiary perspective. However, not prosecuting the offence under s. 293 means justice authorities are complicit in permitting some women and children in Canada to live in conditions where they are effectively being denied their full equality rights as guaranteed by the Charter.

In the case of Bountiful, the practice of polygamy seems to fall within the scope of freedom of religion. How freedom of religion has evolved as a constitutional right in Canada is discussed in Part II. The evolution of the concept is traced through competing lines of judicial decisions. What emerges is a right that, although of fundamental importance, is not without limits. Canadian jurisprudence has identified three possible bases for limiting the right to espouse and practise a religion freely:

• where that right otherwise conflicts with another right (e.g., equality under the law);
  
  
• where a religious practice may harm an individual or pose a threat to public order; and
  
  
• where the state can demonstrate a significant societal interest in limiting the right.

Part II concludes that the anti-polygamy provision trenches on freedom of religion. However, we also note that the Charter s. 1 analysis needs to be completed before we can say that s. 293 is unconstitutional.

Part II also discusses how contemporary courts might resolve a conflict between the right to equality under the law and freedom of religion. A tenable argument may be made that theCharter must be read in context as a whole document and there is, therefore, no hierarchy of rights. Thus, a court faced with a challenge to s. 293 under the Charter's freedom of religion clause would have to balance that right against the equality provisions in the Charter and reconcile these rights. In any event, if a court did decide that s. 293 impinged on religious freedom, it would also invariably undertake an analysis under s. 1 of the Charter with a view to deciding whether that limit on religious freedom was justified. A probable frame of reference in a section 1 analysis would be whether the anti-polygamy provision exists to prevent harm.

After carefully considering some of the complexities attendant to this issue, the authors conclude that s. 293 would likely survive a Charter s. 2(a) challenge.