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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

INTRODUCTION

The appropriate legal response to the practice of polygamy in Canada presents great difficulty for justice officials and policy makers because there are no Canadian legal precedents that analyze the Canadian Charter of Rights and Freedoms¹ implications of anti-polygamy legislation in the Criminal Code.² In analyzing whether Canadian anti-polygamy legislation may offend the Charter, the authors have been obliged to look to the community of Bountiful, British Columbia which, to their knowledge is the only example of a community currently practising polygamy in Canada. While the situation in Bountiful does not necessarily reflect polygamous communities or societies in other parts of the world, it is the only apparent Canadian example and, as such, is used as a case study throughout this paper. While it is likely there are individuals in Canada who choose to live in polygamous arrangements, Bountiful is an entire community where this is the norm, and where the practice is justified on the basis of religious beliefs.

For many years, British Columbia's justice officials have refrained from prosecuting anyone for practising polygamy.³ Yet, Bountiful represents, according to reports from some women and men who have broken away from the community and others who have studied the community, an example of an authoritarian, theocratic culture where many individual rights are so limited that they have little or no meaning when measured against the bundle of rights and liberties which other Canadians enjoy. Religious belief and rituals, family life, sexuality, education, business and social life are all monitored and controlled in Bountiful in accordance with the dictates of the leaders of a breakaway Mormon sect called the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) (BC 1993: 15).

As the Alberta Civil Liberties Research Centre is an organization concerned about both civil liberties and human rights, it is very important to us to endeavour to maintain a neutral position when analyzing these difficult issues. In particular, we believe freedom of religion must be accorded its due respect and strength in Canada. On first blush, we might have concluded that polygamy is a personal choice for the individuals who live in Bountiful and thus one with which the state should not interfere. Nevertheless, a compelling argument may also be made that in some cases, essential rights and freedoms may be limited when their exercise infringes public safety, the personal safety of others or causes other real harms. This paper analyzes whether Canada's anti-polygamy legislation infringes freedom of religion and whether there are significant harms-based concerns that could justify a limitation, such as a criminal prohibition of polygamy.

This paper addresses three issues.

• What are the implications related to the legal and social status of women if governments neither prosecute nor legalize polygamy?
  
  
• How does the non-prosecution of polygamy laws hinder the protection of women and children's equality rights?
  
  
• How does Canadian law deal with conflicting rights, such as freedom of religion and equality, under the Canadian Charter of Rights and Freedoms, in issues such as polygamy?

This paper is divided into two parts. In Part I, we briefly discuss the historical and current situation surrounding polygamy, with emphasis on the North American context and a particular focus on the community of Bountiful. Second, we identify the fundamental principles that inform the analysis in this paper: the rule of law, equality and the role of law in preventing harm. In addition, we briefly set out the current legal response to polygamy in Canada. Next, we examine the social and policy implications of non-enforcement of polygamy law on women and children's equality, with emphasis on the potential harms associated with polygamy.

In Part II, we examine whether anti-polygamy laws infringe freedom of religion under the Charter and how the courts would likely resolve a conflict between gender equality and freedom of religion in the context of anti-polygamy legislation