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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

I: HISTORICAL AND CURRENT CONTEXT OF POLYGAMY

Background

Polygamy is a structured marital relationship in which a spouse of one gender has multiple spouses of the other gender. Historically, by far the most common polygamous arrangement was where a male had several wives; this kind of polygamous practice is called polygyny, and is the one practised in Bountiful. Polyandry is the term used to describe an arrangement where a woman has several husbands. Although polygyny and polyandry have distinct meanings for anthropologists and historians, because the practice of polygyny was and is by far the more common arrangement of the two, polygamy has come to be used generically to describe any multi-spousal marital relationship and is the term used throughout this paper. Having said that, it must be pointed out that Bountiful limits its practice to polygyny.

While the Canadian community of Bountiful is used as a case study throughout this paper, it is important to note that in many parts of the world, polygamous societies exist and have existed for many centuries. The notion of a monogamous matrimonial union as the basis of family relationships is not universal. Polygamous societies are not aberrations. They have been common throughout history and across all cultures.

In North America, and in particular the United States, polygamy has come to be associated historically with adherents of the Church of Jesus Christ of Latter Day Saints, commonly known as Mormons. No summary of polygamy in North America would be complete without a look at its practice within the borders of Utah in the 19^th century. Several thousand followers of the tenets of Mormonism decided to settle there after leaving behind hostile prejudice that sometimes took the form of violent, deadly persecution at the hands of their neighbours in the pre-Civil War United States. Prior to attaining statehood in 1896, the Territory of Utah, which had been a theocracy in everything but name, represented both a curiosity and a challenge for the American federal government. Apart from the Aboriginal inhabitants with their spiritual traditions, the majority of Utah residents adhered to a single religious faith, Mormonism, which was grounded in the belief that polygamous relationships represented the best and highest assurance of an eternal celestial afterlife (Krakauer 2003:5-6). However, even though polygamy did enjoy the blessing of the elders of the early Mormon Church, and even when the practice was at its peak in mid to late-19^th century Utah, the practice was not universal among the Mormon faithful, with only an estimated 20 percent of Mormons involved in polygamous family relationships (Iverson 1984: 505).

In any event, by the turn of the 20^th century, due in no small measure to the fact that a condition for Utah's admission into the American republic as a state was that Mormons officially renounce polygamy as an article of faith, the official Church of Jesus Christ of Latter Day Saints had abandoned polygamy as church doctrine (Nedrow 1981: 314). However, a minority of strict fundamentalists disagreed with this new official stance regarding polygamy and eventually seceded from the mainstream church to establish their own religion - the FLDS. Although retaining many of the beliefs of the mainstream Mormon Church, leaders of the breakaway sect and their faithful followers continued to hold fast to the practice of polygamy as they set out to build a religious institution through a network of isolated rural communities and settlements in the United States, Canada and Mexico. Belief that a man could achieve immortal godhood and that his status in the afterlife, as his status on earth, depended on acquiring several wives and propagating a large number of children, was and is a defining feature of the FLDS faith.

The modern North American FLDS male polygamist has learned to adopt the public trappings of lawful civil marriage, being legally married to only one woman, while abiding by an entirely different set of rules and beliefs that serve to buttress his complex array of relationships and camouflage this array from public scrutiny. Polygamous adults in FLDS communities simply live together under one roof without being legally married, with private, secret religious ceremonies marking these unions as binding commitments in the minds of the participants (Nedrow 1981: 314-320). That is certainly the situation in the FLDS community of Bountiful, British Columbia where married males have only one spouse as defined by civil law (BC 1993: 28). The other "wives" occupy status as "celestial wives," committed to their one "husband" by way of a religious rite known as "sealing."⁴ Furthermore, the FLDS faithful in Bountiful and in the other FLDS communities in the United States and Mexico are expressly told by their church leaders that obedience to the religious rules governing the various aspects of their lives is more important than obedience to the secular laws of the countries in which they dwell (BC 1993: 28). Finally, the private ownership of property, which is arguably one of the features not only of a modern democracy's economic system but also its political system, is discouraged for adherents of the FLDS religion. The leaders of the FLDS manage a large trust called the United Effort Plan (UEP), which crosses international borders and is managed from the Church's Utah headquarters. Members of the various FLDS communities have been urged to deed their land and homes to this trust (BC 1993: 7-8).

Legal Response to Polygamy

This section addresses the current criminal and civil laws in Canada which deal with polygamy and the international laws that affect Canada's obligations in this regard.

Criminal

Polygamy is illegal in Canada under section 293 of the Code. This section states:

Polygamy
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.

Evidence in case of polygamy
 (2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.⁵

There is a related criminal offence called bigamy, where one married person goes through a form of marriage with another person, which is prohibited under Code s. 290. People have been prosecuted under this section on a number of occasions.⁶

In addressing the legal approaches to polygamy, some have argued that adultery is a similar activity, yet it is not subject to the criminal law in Canada. Nor is the situation where an individual is married but separated and enters into a subsequent common-law relationship without divorce. Indeed, courts have concluded that the Code anti-polygamy provision does not apply to adultery, even when those who are committing adultery are co-habiting.⁷ This is because the individuals involved do not purport to be entering into a form of marriage.

While polygamy is illegal, prosecution of the practice of polygamy per se can be an exercise fraught with difficulty, as one notorious example from the United States shows. The United States is home to an estimated 50,000 to 60,000 practising polygamists, the majority of whom are members of the FLDS religion. By far, the largest number of people practising polygamy live in communities in Utah and Arizona, with the most well-known community being that of Colorado City, a predominantly polygamous town of about 5,000 residents that lies on the border between Arizona and Utah. Colorado City used to be a small, isolated farming community known as Short Creek and it was here, one day in late July of 1953 that a mass arrest of FLDS adults occurred. The entire community, with the exception of five adults and the community's 236 children, was charged with criminal conspiracy and polygamy (Gripman 2001). The children were taken into protective custody by the State of Arizona and assigned to various foster homes. State prosecutors subsequently reached a plea bargain agreement with 26 of the men who agreed to plead guilty to "open and notorious cohabitation" and were subsequently released on one year's probation. The majority of the community's children were returned to their parents' care after several lengthy court battles. The raid proved to be a public relations disaster for the authorities in Arizona, particularly the governor who had authorized the raid and who subsequently went down to defeat in the next election.

Notwithstanding the difficulties which American authorities have faced in securing convictions of polygamists in the past, there have been some recent cases, including the conviction of an FLDS man in Utah in 2003 on counts of rape, criminal non-support and bigamy. Thomas Green became engaged to his 12-year-old stepdaughter in 1985 and then "celestially" married her according to the rites of the fundamentalist Mormon religion after the girl reached her 13^th birthday. She subsequently conceived a child who was born four months after her 14^th birthday. Later on, in an unsuccessful bid to avoid charges of child molestation, Green married the girl when she was of legal age to consent to marriage, in accordance with Utah law. In a 2005 decision, the Utah Supreme Court upheld Green's conviction for statutory rape of a child.⁸ In an earlier decision, the Utah Supreme Court had upheld on appeal Green's convictions for criminal non-support and four counts of bigamy.⁹ In this case, Green had unsuccessfully tried to get around Utah's law against being married to more than one person at a time by avoiding being in more than one licensed marriage at a time. Green, who had one lawful wife and three "celestial wives," would divorce one woman and then marry another while continuing to maintain his "celestial relationship" with the woman he had divorced.

Civil

While there are criminal prohibitions against polygamy contained in s. 293 of the Code, there is a somewhat modified approach to polygamy under civil law. Canadian courts have historically and for very limited purposes recognized the validity of foreign polygamous marriages by applying conflict of laws rules regarding marriage. In brief, so long as the parties to a marriage in a foreign jurisdiction had legal capacity and were married in accordance with the marriage laws of that jurisdiction, the marriage will be declared valid in Canada for certain purposes. The passing of property from a deceased person to an heir by way of a will is one of them. For example, in the 1923 decision of Yew v. British Columbia,¹⁰ the British Columbia Court of Appeal reversed a lower court's decision that had denied the marital status of the two Chinese widows of a deceased Canadian resident. The deceased had left instructions in his will to pay an annuity from his estate to each widow. At issue was whether the annuities would be levied a duty at the rate for married persons in accordance with applicable British Columbia law of testate succession or whether they would be subject to a higher rate. A lower court had denied the marital status of the two women on the grounds that their respective unions were not marriages within the definition of marriage according to Canadian law. However the Court of Appeal found that because the deceased had married the two women in China while he was still a citizen of China and because Chinese law at the time permitted polygamous marriages, the two women were lawful spouses of the deceased such that they were entitled to have their annuities taxed at the lower rate.

Our courts have also not hesitated historically to recognize foreign polygamous marriages in certain cases when the applicants for admission to Canada were children. For example, the Federal Court of Appeal in 1983 overturned a decision of the Immigration Appeal Board that had denied a father's application to sponsor for admission into Canada his three children. The children were born in Hong Kong while the man was resident there and married to two women. Polygamous marriage being lawful in Hong Kong, the Court of Appeal held there was no question as to the status of the children such that they could be admitted into Canada pursuant to their father's sponsorship application.¹¹ Nor would a Canadian court deny relief in a case involving a potentially polygamous foreign marriage when matrimonial relief under Canadian law was at issue. In a 1976 decision arising out of Ontario, the Ontario High Court of Justice had to consider the legal status of a marriage performed in Egypt in accordance with the matrimonial rites of Islam.¹² A husband and wife, both Canadian citizens, married in Egypt in 1962 and subsequently immigrated to Canada. The husband purported to have received a divorce in 1974 from the Egyptian Consul in Montréal in accordance with the rites of Islam. The wife rejected the "divorce" as being invalid in accordance with Canadian law and petitioned for support under a valid marriage. The husband took the view that because the Egyptian marriage was potentially polygamous, Canadian courts and laws had no jurisdiction, and thus his wife was not entitled to any support. The court applied the conflict of law rules regarding marriage and found the Egyptian marriage to be valid, so when the couple immigrated to Canada, their marriage became subject to Canadian law such that the law of Ontario would apply to grant matrimonial relief to the separated wife.

However, our courts have not permitted people who immigrate from other countries to continue to practise polygamy. In 1998, an immigration officer denied an application for permanent residency from a Palestinian man who had married two women in Kuwait and had fathered five children between the two women. The man applied for a judicial review of the decision, and the review was granted. However, the court reviewing the matter upheld the decision of the immigration officer, declining to reject the officer's finding that the man and his two wives would practise polygamy in Canada once they became permanent residents.¹³ Moreover, current federal legislation prohibits sponsorship of a foreign national by a Canadian resident, where the foreign national is the sponsor's spouse and the sponsor was, at the time of the marriage, married to another person.¹⁴

Canada's approach is consistent with that of the United Kingdom, which has faced enormous challenges over the past few decades in terms of accommodating the needs of large numbers of immigrants from Africa and the Middle East, many of whom originate from countries where polygamous unions are not uncommon and indeed, in many sub-Saharan African countries, constitute up to half of all matrimonial unions (Wing 2001). English courts also apply conflict of laws rules to recognize the validity of foreign polygamous marriages for certain purposes. English law also continues to prohibit polygamy for residents of the United Kingdom (Martin 1994: 424-426). However, the prohibition against polygamy has been the subject of legal challenges and lobbying by traditionalist Muslim groups. Traditionalist Muslims have advanced the proposition, albeit so far without success, that the European Convention on Human Rights¹⁵ can be used to support legalizing polygamy in Britain. According to Article 8 of the European Convention, "everyone has the right to respect for his private and family life, his home and his correspondence." Traditionalist Muslims support a broad interpretation of this Article. They argue that since polygamy is a practice that is part of the religious and cultural heritage of thousands of British Muslims, respect for private and family life should entail legal recognition of a right for polygamous Muslims to sponsor the admission of second and even subsequent wives into the United Kingdom. However, that argument has not succeeded to date before the European Human Rights Commission, which has ruled that Britain's immigration laws against bringing more than one spouse into the country do not violate the Convention (Wing 2001: 856). Indeed, in accordance with Article 8(2) of the Convention, a state has the right to enact laws concerning family life to protect the rights and freedoms of others. This approach is consistent with the rulings of United Kingdom courts which apply conflict of laws rules so foreign polygamous marriages are recognized for some, but not all, purposes (e.g., inheritance). The check against an encompassing recognition of foreign polygamous unions is that the courts refuse to recognize any legal relationship created under a foreign law that would offend the fundamental public policy of Britain (Martin 1994: 443).

International Laws

Canada's obligations under international law also must be examined. Canadian courts look to the international human rights instruments Canada is bound by to provide guidance as to the interpretation and application of the Charter. In the context of interpreting and applying the human rights of the Charter, the Supreme Court of Canada clearly stated that customary and conventional international law is both useful and relevant. The Supreme Court of Canada also stated that various sources of international human rights law, including customary norms, must be relevant sources when interpreting Charter provisions.¹⁶

Canada is subject to a number of international human rights laws that may pertain to polygamy or its associated activities. The Convention on the Rights of the Child¹⁷ Article 34 instructs states to "protect children from all forms of sexual exploitation and sexual abuse." It also provides that states must take all measures to prevent "the inducement or coercion of a child to engage in unlawful sexual activity." The underage sexual activity alleged to be occurring in Bountiful should therefore be subject to all efforts of prevention by our government.

In addition, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)¹⁸ provides in Article 16 that states must "take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations" and in particular shall ensure, on a basis of equality of men and women:

(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
(f)  The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

In 1994, the Committee on the Elimination of Discrimination against Women passed General Recommendation 21, which says the following about polygamy.

Polygamous marriages

14. States parties' reports also disclose that polygamy is practised in a number of countries. Polygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of article 5 (a) of the Convention.

Article 5(a) deals with elimination of prejudices related to gender inferiority or superiority. Clearly, the United Nations Committee on the Elimination of Discrimination against Women has determined that polygamy should be prohibited. Thus, because Canada has signed and ratified these conventions, at minimum, these recommendations should be influential when interpreting rights such as equality under subs. 15(1) of the Charter.

Equality

Having summarized the history and current reality of polygamy with a focus on the North American context, and the current applicable laws, we now define and discuss some key principles that are relevant to our legal analysis.

Our human rights laws reflect key legal and social values of Canadians. One important value is the tolerance of, and respect for, the religious practices and beliefs - or non-beliefs - of all people. Freedom of religion is guaranteed and protected by s. 2(b) of the Charter. Canadians also enjoy the right to equal treatment under the law by virtue of subs. 15(1) of the Charter. Formal equality between the genders has normative status as well under s. 28 of the Charter. Equality of treatment under the law is a precious thing and one of the most defining features of a modern, democratic society.

Personal autonomy is exercised in contemporary Canada within a legal, political and social framework that is informed by the normative values of equality before the law, accommodation of differences, and formal equality between the genders. These normative values have formal legal expression in ss. 15 and 28 of the Charter which, as part of Canada's Constitution, constitutes the highest source of law in the land. The notion of equality for all persons under and before the law may be a value that Canadians now take for granted. However, equality under the law has enjoyed a slow evolution, particularly for women and girls.

For example, the pledge of a marriage vow in an earlier time saw a woman lose her status, such as it was, and lose what few legal rights she might have otherwise had. On marriage, a woman was legally deemed to fall within the ambit of her husband's care and responsibility. This legal reality was common throughout the English-speaking democracies. So long as husbands provided their wives and families with the necessities of life and shelter, the courts were extremely reluctant, on both legal and policy grounds, to intervene in all but the most heinous instances of abuse or neglect (Golz 1995). The ethos of the day was that so long as activities in the so-called "private sphere" did not harm or threaten the peace and order in the public domain, the legal system should not intervene except in the most egregious situations of abuse or neglect.¹⁹ That ethos of non-interference in how individuals conduct their private affairs continues to have validity as far as regulating the state's role in the private realm. In most cases, the trigger for state action and intervention continues to be when a harmful act is done to another person.

Gender equality rights have been enshrined under subs. 15(1) of the Charter.

15. (1) 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.

There have been many decisions at the provincial appellate level, and at the Supreme Court of Canada, where impugned statutes have been examined through the lens of Charter subs. 15(1) in an effort to see whether a given statute offends the Charter's equality guarantee. However, the standard for analysis has been carved out by two particular decisions of the Supreme Court of Canada: Andrews v. Law Society of British Columbia²⁰ and Law v. Canada.²¹ Orton (1990: 302) discussed the impact of the Andrews decision and noted the Supreme Court of Canada's approach to the constitutional right to equality, "because it is based on remedying disadvantage rather than treating likes alike, means that laws that have not benefited disadvantaged groups must now do so."

The Law v. Canada decision sets out an analytical framework in which the need for a contextual approach to equality rights is emphasized. In determining whether there has been discrimination under Charter subs. 15(1), there is no need to show any intention to discriminate against an aggrieved person or group claiming lack of equal treatment under the law. Instead, a court may find that equal treatment under the law has been denied to a person or group where there has been a "failure to accommodate circumstances of actual disadvantage" (Sharpe et al. 2002: 276). Essentially, for an individual or group to establish successfully that a law violates the equality provision in the Charter, such an individual or group would have to prove different treatment and discrimination based on one of the listed grounds in subs. 15(1) or an analogous ground. The analytical framework, as set out by the Supreme Court, is as follows.

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?²²

The purpose of subs. 15(1), as identified by our Supreme Court, is to foster a society in which citizens can rest confident that the law accords them equal respect and treatment without prejudice. Subsection 15(1) is supposed to operate as a guarantee against oppression, the purpose of which is to "remedy the imposition of unfair limitations upon opportunities, particularly for those persons or groups who have been subject to historical disadvantage, prejudice, and stereotyping."²³

The right to gender equality is recognized in subs. 15(1). This is supported by s. 28 of the Charter which guarantees equality between the genders in the application of other Charter rights and freedoms.²⁴In addition, a woman's fundamental right to equality before and under the law has been recognized in various international conventions and covenants to which Canada is a signatory.²⁵ Furthermore, at least one international agreement calls on all state-signatories to undertake initiatives designed to remove all prejudices and practices associated with stereotyped roles for men and women. According to Article 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women,²⁶ state parties to the Convention must implement measures:

to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women (Mayer 2000-2001: 248).

Decisions of Canada's Supreme Court clearly established subs. 15(1) as the lens through which the courts must view any given argument that one's equality rights have been infringed upon. As Wilson, J. said in the decision of McKinney v. University of Guelph:

In other words, s. 15 is, in effect, declaratory of the rights of all to equality under the justice system so that, if an individual's guarantee of equality is not respected by those to whom the Charter applies, the courts must redress that inequality.²⁷

What Canadian jurisprudence has established is that irrespective of an aggrieved person's claim that a law infringes on individual rights, a court examining that matter must take a "purposive and contextual approach to discrimination analysis."²⁸ Further, to find that a measure discriminates in a substantive sense, it is necessary that human dignity be impaired. The Supreme Court of Canada stated in Law v. Canada:

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law.²⁹

Equality before the law is an important democratic value. If gender equality were at issue, claimants would be required to show, in a way that would attract a Charter remedy, that they experience and have experienced prejudice, stereotyping and historical ill treatment. In the case of polygamy, women would argue that permitting polygamy seriously threatens their "human dignity."

In Law v. Canada, the Supreme Court also set out four contextual factors to assist in determining whether human dignity is impaired, although the court indicates that this list is not exhaustive. The four factors as applied to the question of polygamy are:

• a pre-existing disadvantage;
  
  
• correspondence between the grounds and the claimants' actual needs, capacities or circumstances;
  
  
• an ameliorative purpose or effects on more disadvantaged individuals or groups in society; and
  
  
• the nature of the interest affected.

Pre-Existing Disadvantage

The Supreme Court noted that historical disadvantage does not automatically lead to a finding of discrimination, although it weighs in favour of that finding. Women and girls may be said to suffer social, political and economic disadvantage both currently and historically. In the context of Bountiful, the failure to prosecute polygamy reinforces inaccurate understandings of the merits, capabilities and worth of women and girls within Canadian society, perpetuating their disadvantage.

Correspondence between the Grounds and the Claimants' Actual Needs, Capacities or Circumstances

Women and children living in polygamous relationships and families in Bountiful are as deserving of legal protection and support as all other women and children in Canada. However, because polygamy is not being prosecuted, they are not receiving legal protection or support.

If Canadians choose to enter into relationships, these are usually monogamous.³⁰ Western societies have valued monogamy for a number of reasons. This is not to say that the monogamous union is not without its problems. For example, this family form has had negative results for First Nations women.³¹ Clearly, the Canadian family is a "thoroughly gendered institution" that is "premised on a gendered division of labour that permeates every aspect of family life" (Majury 2002: 321). Traditional monogamous relationships, therefore, cannot be upheld as some paragon of equality because, particularly as history has shown, that decidedly has not been the case. A pre-Confederation era unmarried woman may have been deemed to enjoy an equal natural right to dignity along with her unmarried male counterpart. However, once she entered into marriage, whatever minimal rights she had, be they natural or civil, merged with those of her husband such that, insofar as the law regarded her, she had no legal personality (Golz 1995: 325). There were piecemeal changes to laws governing the matrimonial relationship beginning in the mid-19^th century. For example, family law reform initiatives in Ontario expanded the rights of married women in areas like child custody and guardianship. Such minimalist reforms, though, were very much rooted in notions of Victorian era morality, informed by the notion of fault surrounding any act of female adultery committed irrespective of the circumstances that had led to it. Proof of female adultery would attract legal condemnation of a mother as being morally unfit and thus unworthy of legal custody of her children (Golz 1995: 326). The long march toward formal recognition of the equality between female and male persons in Canada arguably attained one of its highest points with the inclusion of s. 28 in the Charter. However, to appreciate just how far Canadian women have travelled, one need only look to the fact that it was not until 1929 that women attained the status of legal persons pursuant to the October 18, 1929 ruling of the judicial committee of England's Privy Council in what has come to be known as the "Persons Case."³² The long evolution toward equality has been defined by individual stories of courage and perseverance in the face of public indifference or even worse.

A discussion of this evolution toward legal recognition of gender equality is beyond the scope of this paper. It is relevant for our discussion to recognize the historical evolution of the concept and to note that, as a result of numerous family law reform initiatives, at least a contemporary monogamous relationship does carry the potential for an equal sharing of the load associated with supporting children.

By contrast, the polygamous home involves a division of a husband's labour, time and resources among several wives and children. Children in many polygamous households essentially grow up in homes with a part-time father who can provide only transient support and parenting. While this may be the case for a number of lone-parent families or families in which one parent is away for long periods, and for whom having a part-time father does not create harm, polygamy as practised in Bountiful creates the situation where a large number of women and children depend economically and emotionally on one man. This arrangement can create emotional stress for women, stress which is further exacerbated if the family lives in poverty (Schnier and Hintmann 2001: 810). Moreover, it is common practice in polygamous unions of Bountiful for wives to have no right to choose potential mates (Schnier and Hintmann 2001: 821).

Ameliorative Purpose or Effects on More Disadvantaged Individuals or Groups in Society

This contextual factor has little relevance in the case of polygamy.

Nature of Interest Affected

As the majority of the Supreme Court of Canada noted in M. v. H.

The discriminatory calibre of differential treatment cannot be fully appreciated without considering whether the distinction in question restricts access to a fundamental social institution, or affects a basic aspect of full membership in Canadian society, or constitutes a complete non-recognition of a particular group.³³

The lack of prosecution of polygamy impacts on women and children of Bountiful and affects their interest in a profound way. A case might be made that the women and children involved in polygamous familial relationships are victims, and that by not prosecuting s. 293, justice officials are complicit in the preservation of subservient status for the women and children of polygamy. The issue was succinctly put in a 1993 report about Bountiful prepared for the British Columbia Ministry of Women's Equality (BC 1993: 13). "The situation of the Bountiful group poses the question: when does culture stop being culture and start being abuse?" If the leaders of a polygamous community like Bountiful are going to expect the court to accept the proposition that women choose to participate in a polygamous arrangement in which one man controls the decision making for a group of women and children, then for such a proposition to be accorded any respect a woman's choice must be freely made after she has considered various possibilities and outcomes. Arguably, however, such a choice could only be legitimate if it were the product of a system that encourages free thought and the exercise of rights to free speech and freedom of conscience. For a democracy to function effectively, citizens must develop the necessary skills and capacities to discern the policies and laws by which they might be governed. The educational and social structures of Bountiful though are hardly conducive to this kind of free exercise of individual will.

For all these reasons, the lack of prosecution of polygamy impairs the dignity of the women and children of Bountiful. And, thus, their equality under Charter s. 15(1) is at issue.

The Harm Principle in Canadian Law

In addition to equality, other important relevant values include the "rule of law" and the "harm principle." The rule of law is a fundamental feature of Canadian democracy. Its essential nature may be summed up as:

• nobody should be subject to the whim of political and legal authority acting without the sanction of law;
  
  
• everyone, including government officials, elected representatives and a country's political executive is subject to and equal before the law; and
  
  
• citizens need certainty about the law so they can freely live within the limits set by law (Tamanaha 2004: 34-35).

These limits, it must be noted, have been set by the majority of citizens expressing their will through our elected political representatives. Whatever the motivation a person might have for abiding by a given law, arguably the most important function that law as an institution plays in a democracy is that it permits maximum autonomy for individuals, subject only to the proposition that as we satisfy our individual needs and pursue our ambitions in life, we do not harm other people as they pursue their own needs and goals.

The harm principle, as developed by John Stuart Mill in 1869, is often referenced by the Supreme Court of Canada. In his essay, On Liberty, Mill sets out the principle that indicates the breadth of individual liberty and the limits of state intrusion on that liberty as

[t]hat only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others" (Mill 1989: 13).

The harm principle has become an important feature of Canadian law; in particular, in the analysis of Charter s. 2(b) (freedom of expression) and in the Charter s. 7 right to "life, liberty and security of the person" (Levine 2004: 197). For example, in R. v. Butler,³⁴ a case about pornography, the majority of the Supreme Court of Canada adopted the Millian philosophy that only harm to others (in this case women and girls) could justify the infringement of personal liberty or freedom. The Supreme Court of Canada noted that the level of harm required to justify such an infringement is a "reasoned apprehension of harm," evidenced by a rational link between the criminal sanction and the objective.³⁵ Levine (2004: 199) noted that in the case law after Butler, three points about the harm principle became clear. First, the legislative objective of harm prevention was required to justify infringements of Charter rights. Second, the harm principle was important in the "fundamental justice" analysis in s. 7 and in the balancing approach used in a Charter s. 1 analysis. Finally, governments had an increasingly difficult task of providing evidentiary proof of harm when justifying legislation that limits Charter rights.

Recently, however, the Supreme Court of Canada rejected the harm principle as a "principle of fundamental justice" under Charter s. 7.³⁶ The Malmo-Levine case indicated that Parliament is entitled to deference on its decisions to criminalize behaviour, subject only to our constitutional rights.³⁷ That is, Parliament could pass criminal laws in the furtherance of legitimate state interests that were not limited to the avoidance of harm.³⁸ Further, the Court noted that the harm principle is "an important state interest" but not a normative "legal" principle.³⁹ The other issue noted by the Court is the lack of consensus about what constitutes harm in our society. Nevertheless, Levine (2004: 208) concluded that social values used to support criminal legislation will not pass s. 7 Charter scrutiny unless some harm is avoided.

What may constitute harm can be a source for lively debate and discussion. After all, one person's harmless pleasure may be regarded by another as an affront to morality and therefore deemed to constitute a social harm. However, amid the debate as to what may constitute harm, even persons of otherwise disparate viewpoints could come to agreement about certain actions that must undeniably constitute harmful acts. Within the voluminous body of Canadian law, one important document can rightfully be regarded as a uniform code of conduct for everyone: the Criminal Code. The Code contains numerous examples of prohibitions against various forms of conduct considered harmful to individuals or society. Even some of our most private conduct is the subject of prohibitions in the Code. For example, pursuant to s. 43, a teacher or parent may use physical means to discipline a pupil or child but that force cannot "exceed what is reasonable in the circumstances."⁴⁰ Another example is subs. 282(1), which makes it illegal for one parent to take and detain a child who has been the subject of a custody order that had granted custody to the other parent. A third example is the prohibition against incest as set out in s. 155 and which defines incest as sexual intercourse between blood relatives, a definition that includes half-brothers and half-sisters. These prohibitions - and there are many others in the Code - are neither capricious nor arbitrary. They reflect the minimum standards that reasonable people from across the political spectrum have agreed are necessary to ensure the social cohesion of a large and otherwise disparate citizenry. It should go without saying that this uniform code of conduct applies equally to all residents of Canada irrespective of gender, sexual orientation, ethnic origin, cultural background or religious belief. Indeed, while these prohibitions may limit some people in the practice of their religion, such limitations are seen as incidental, because the laws are of wide general application and they address harms.

It is quite proper and permissible for Parliament to choose the most appropriate method to deal with a harmful activity, even if there are other methods available. For example, in RJR-MacDonald Inc. v. Canada (Attorney General),⁴¹ the Supreme Court of Canada examined the issue of whether it was constitutional to address cigarette smoking, a harmful activity, by regulating the labels of cigarette packages, rather than by criminalizing smoking. The majority of the Supreme Court of Canada said:

Once it is conceded, as I believe it must be, that tobacco consumption has detrimental health effects and that Parliament's intent in enacting this legislation was to combat these effects, then the wisdom of Parliament's choice of method cannot be determinative with respect to Parliament's power to legislate.⁴²

In the same way, once it is conceded that polygamy is harmful and Parliament's intent in enacting criminal legislation is to combat its harmful effects, then the wisdom of Parliament's choice of method will not determine whether it has the power to legislate against polygamy.

The Supreme Court of Canada has said that although Parliament has chosen not to use criminal laws to address one harmful activity (e.g., tobacco smoking or alcohol consumption), this does not mean that Parliament cannot impose criminal sanctions on another similar one (e.g., marijuana use).⁴³ Thus, although adultery and similar activities may indeed be regarded as harmful, Parliament has chosen not to address these with criminal prohibitions, while imposing criminal penalties for polygamy, which Parliament also regards as sufficiently harmful to be criminalized, rather than dealt with under civil law or regulations.

Harms Associated with Polygamy

Before we discuss the harms associated with polygamy, it is important to address difficulties associated with determining those harms. First, at times, it is difficult to distinguish between harms associated with a polygamous community and those associated with a closed, theocratic community. There may be other harms associated with practices in a particular theocratic community unrelated to polygamy. Some of these harms may or may not be the subject of criminal sanction. For example, practices related to child discipline may offend the assault provisions of the Code. Fundamentalist Mormons are expressly told by the elders of their Church that the religious rules governing the various aspects of their lives are more important than the secular laws of the country in which they dwell (BBC 1993: 18). At minimum, this could cause people to believe they are correct when disobeying secular laws, thus potentially weakening the rule of law, which is the cornerstone of democracy.

Second, some of the harms attributed to polygamy may actually be hard to separate from the harms associated with patriarchy, which of course is not limited to the community of Bountiful. For example, monogamous heterosexual relationships are not without harms to women's gender equality.

Finally, in determining the harms associated with polygamy as practised in Bountiful, we were limited by the resources we had in determining them: materials provided by ex-members of the community, a report written in 1993, Life in Bountiful, and a paper written by a professor from the University of Alberta.

Some of the impugned harms of polygamy as practised in Bountiful are said to affect society in general and others are said to be very personal. For example, there is concern that the creation of communities such as Bountiful, founded on polygamy, invested with the trappings of legal protection for their lifestyle, could pose a threat to the proper running of a modern democracy. On the other hand, Beaman (2004: 33) asserted: "The need to prosecute LDS [Latter Day Saints] polygamists has disappeared - they are no longer seen as a threat to the nation or to the social order." In response to this argument, Kent (forthcoming) argued that polygamous communities, such as those in Colorado City and Bountiful "very well may be threats to the state to the extent that they put some of its citizens at risk of serious but preventable harm and human rights abuses."

The continued practice of polygamy raises other social concerns. What would result if Canada were to permit a separate set of rules and laws for families and relationships for an insular community like Bountiful? Would other Canadians feel emboldened to assert a right to their own rules and laws for families and relationships without regard to the equality right that our courts have said should otherwise inform law in Canada?⁴⁴ A patchwork of sub-communities or sub-groups applying their own rules and laws in the area of family law could arguably undermine our notion of equality under the law and pose a potential challenge to the social cohesion of our country. In effect, we would be saying that equality for all without regard to gender is not an absolute or intrinsically Canadian value.

Invariably, the most vulnerable members of society are women and children. It is well documented that inequality and patriarchal hierarchy are the defining features of most polygamous societies, even those that persist to this day (Thompson and Frez 1994: 29-32 passim). This inequality is demonstrated by the fact that, although the male is usually not restricted in the number of wives he may have (with the exception of Islam which allows a man to have up to four wives with the consent of their other wives), women are only allowed one husband (Wing 2001: 838). This is the case in Bountiful.

In some cases, there is a prevailing culture of female subordination in polygamous households and this is particularly harmful for female children (Wing 2001: 817). For female children, their mother is the most important role model through which they may glimpse their own future. While not without its roots in patriarchy, the legal system and socio-economic structure of Canadian society is informed by the value of formal equality, which feminists and many others believe should stress the freedom of a female to choose her own path in life and associate with anyone she desires. However, this is certainly not the reality of the family environment in the typical polygamous Bountiful household. The idea that a man is the dominant voice in a household and that various female subordinates must vie for his attention is not one that ensures optimum freedom for young females to choose their future direction. These lessons are also negative for the male children in the family, as they learn their notions about women and their unequal status from their family experiences as well.

Polygamy as practised in Bountiful is harmful to children, women and society, because it perpetuates a value system premised on the idea that women have no place in a community as fully equal citizens. Certainly, a value system predicated on the concentration of political and religious authority in the hands of a few men is one that neither respects nor fosters free, critical thought and independent action. In Bountiful, the children of polygamous unions are raised in an environment where women are told what to believe and are controlled entirely by men; they are conditioned to believe that women are subject to the will of their husband. Furthermore, they see that although their mother only has the one husband to whom they owe complete devotion and loyalty, that male can have as many wives as he wishes.

What of the argument that anyone who disagrees or dissents from the rules of a polygamous family group simply has to leave? Such a "right to exit" argument calls to mind an earlier era when a woman's consent to marriage was deemed to imply consent to sexual relations solely on her husband's terms, even if this involved consent to various forms of emotional and physical abuse done in the name of spousal correction. Until 1982, s. 143 of the Criminal Code defined rape as non-consensual sexual intercourse between a male and "a female person who is not his wife." Thus, in effect, a wife historically had no right under Canadian law to refuse to consent to her husband's demand for sexual intercourse. Another example of the over-simplicity of the "right to exit" argument may be found in the legally recognized battered woman syndrome, wherein because of the cycle of psychological, physical, financial, sexual and other forms of abuse, women do not leave abusive spouses.⁴⁵

Even so, there are some who might argue that the female participants in polygamous relationships are free to join such relationships and are free to leave these relationships and indeed the very community itself. Within the cultural reality that a polygamous community like Bountiful presents, so the argument goes, women are autonomous. For such "freedom to choose" to have any legitimacy as a value, however, the freedom must be based on an informed choice by women to associate with others in a polygamous arrangement without coercion or peer pressure from others. After all, a truly autonomous person does not uncritically embrace any given religious or philosophical value system. Rather, the rationally autonomous person will from time to time critically examine that religious or philosophical value system and check it against the reality of the outside world. Polygamy, in its effect and practice in Bountiful, may constitute discrimination. Polygamy may also perpetuate patriarchy and reinforce the belief system of the participants in polygamous cultures that a woman's status is determined by her relationship with a man and that her status is less than that of a man's. How can there be an autonomous choice by any female, especially a girl of 13 or 14 years, to engage in a polygamous relationship when such choice arises from her indoctrination into a belief system where she is taught that she only achieves self-worth when she becomes the bride of a man who may be old enough to be her grandfather?

In discussing harms associated with polygamy in the United States in communities similar to Bountiful, Vazquez (2001-2002: 246) argued that even if strict constitutional scrutiny were applied to anti-polygamy laws, they would be shown to serve a compelling government interest. Reasons for prosecuting polygamy include heightened potential for sexual abuse of children in polygamous communities, protection of women from physical and sexual abuse and prosecution of fraud (Vazquez 2001-2002: 230, 233, 239). Effective prosecution of these offences is complicated by the veil of silence imposed by polygamous communities, in addition to their isolation. Criminalizing polygamy may serve to break down the wall that allows these crimes to thrive (Vazquez 2001-2002: 243). Welfare and tax fraud are apparently commonplace in Utah's polygamous communities (Vazquez 2001-2002: 244). Vazquez also listed a panoply of civil laws that are negatively impacted by polygamy, such as worker's compensation, immigration issues, estate matters and the like.⁴⁶

Professor Kent (forthcoming) concluded that polygamy as practised in Bountiful (and in Colorado City) is a "maladaptive practice." Arranged marriages deprive young women of the right to make marital choices. The marriages also control the young women's sexuality, as they become "baby-producers in order to fulfill the religious aspirations of the men who control them." He mentioned that early pregnancies put the young women and babies at additional medical risk, with potentially "deadly consequences from their pregnancies and deliveries."

Professor Kent also noted that in addition to being illegal, underage marriage as practised in Bountiful involves serious human rights violations. In addition to those harms already mentioned, Bountiful is likely involved in a form of trafficking of girls across the international border between Canada and the United States for the purpose of polygamous marriage. This would appear to be "polygamous trafficking" which is a violation of Article 35 of the Convention on the Rights of the Child (Kent forthcoming).

Those who argue that polygamy should be decriminalized note that there are many other similar situations in Canadian society that resemble polygamy, such as a man having children with several different women (either at the same time or through serial relationships), yet these relationships are not illegal under Canadian criminal law. However, in Bountiful, polygamy involves the formation of family units typically including several children, with various mothers, in which both women and children are subjected to the real risk of harm. Further, as noted, often the females in Bountiful who enter polygamous marriages are said to be below the age of consent and are not able to understand the consequences of agreeing to a polygamous marriage.

Others opposed to criminalizing polygamy argue that it is preferable to address the underlying existing criminal behaviours, such as underage intercourse, incest or related offences, rather than to prosecute polygamy. These behaviours, they argue, are at the heart of most people's concerns about polygamy. However, while they encompass some of the critical concerns about polygamy, they do not include all of the behaviours which are of concern. For example, the overall psychological harms of polygamy and the associated human rights violations experienced by women and children are not addressed by prosecuting incest and underage intercourse (sexual assault) alone.

Official indifference toward the presence of a polygamous community in Canada does nothing for the individual female residents of that community, who must come of age and mature in an environment that limits not only the career choices available (such as they are) but also relegates them to a life of no choice or severely restricted choice in matters that run the gamut from personal sexual gratification to freedom of expression. Indeed, official indifference toward a polygamous community may, as an unintended consequence, discourage community leaders from putting forward solutions within the group to amend, if not abolish altogether, some of the more egregious affronts to our notion of equality. Non-interference in the affairs of a polygamous community can only ensure that the undemocratic practices of that group will continue and that the hierarchy of that community will continue to monitor and control all aspects of community and private life in an environment that limits freedom of choice, particularly as freedom of choice pertains to the rights of women. There is no neutrality in maintaining a stance of official indifference to the practice of polygamy, however attractive that may be from an administration of justice perspective, because of the small number of people involved in the practice of polygamy. Tacit tolerance of polygamy, or indifference toward its practice, reinforces the controlling hand of the patriarchal elite that runs a polygamous community and ensures a long lifespan for a system that relegates females to second-class citizenship and the role of "baby producers." The danger inherent in according overt acceptance or even tacit acceptance to a minority group's illiberal practices has been eloquently identified by University of Toronto legal scholar Ayelet Shachar (1998b: 95). "In essence, a policy of 'non-intervention' renders invisible those violations of members' basic individual rights which occur under the 'shield' of an identity group, because it conceptualizes intra-group affairs as completely 'outside' the domain of state law."

Social and Legal Implications for Women of Non-Prosecution or Non-Legalization of Polygamy

Since we have asserted that limitations on fundamental freedoms are permissible to prevent or stop harm, we need to examine some additional concrete examples of the harm polygamy inflicts on women and children. One way of doing so is to examine the policy and legal implications of polygamy in the areas of relationship breakdown, custody, division of property, social assistance, benefits and taxation. What harm is demonstrated in these areas in a system whereby polygamy is illegal, but not prosecuted?

As noted, Bountiful is the only real life example we have in Canada of a large-scale polygamous community. As such, it can be used as a present day example of the legal issues and social problems that have arisen. Polygamous relationships may also exist on a smaller scale unbeknownst to legal authorities. For instance, a married couple from another country could immigrate to Canada and then take on more "wives," because it is traditional to do so in their home culture. While the social setting in which these relationships exist is more difficult to study, the legal implications of certain issues, such as relationship breakdown would be the same as in Bountiful.⁴⁷ As such, Bountiful is used as a running example throughout this section to assess the types of legal problems and the associated social issues that arise in polygamous relationships and communities. Starting from a legal perspective, this section also examines the associated social implications of a large-scale polygamous community on women, children, families and communities.

A legalized polygamy scheme would affect every aspect of law that pertains to families. Not only would the areas mentioned above be in flux, but so would wills,⁴⁸ consent to medical treatment, immigration, compensation for fatal accidents, human rights and property, among others. The following analysis demonstrates that legalizing polygamy goes to the heart of our legal system in a way that other changes, such as legalized same-sex marriage, do not. However, if it could be said that allowing polygamy was a part of Canada's commitment to supporting equality, then these laws would have to be altered regardless of the chaos it might cause. This section demonstrates how harm is caused by not prosecuting polygamy, while at the same time ignoring the lack of legal rights accorded to women and children in these unions.

Relationship Issues
Defining Relationships

Case law has defined marriage in the past as between one man and one woman to the exclusion of all others, and more recently as between two persons.⁴⁹ Under both definitions, only two people can legally enter into a marriage. In polygynous unions, the first wife is legally married to the male in the relationship, while the other wives have tenuous legal standing. All Canadian laws governing relationships reflect the basic understanding of a limit of only two people entering into a relationship at a given time, whether it is marital or common law.

Hyde v. Hyde,⁵⁰ in the context of a potentially polygamous relationship, stated that marriage is defined as "the voluntary union for life of one man and one woman, to the exclusion of all others." Since then, as noted previously, Canadian courts have recognized some foreign polygamous unions.⁵¹ The courts, however, have been careful to decline to recognize polygamous unions for the purposes of immigration.⁵² In addition, for the purposes of determining parentage, the law still only recognizes two parents for any particular child.⁵³

Relationships that are recognized by law can be marital or common law. Common-law couples increasingly have more and more rights and responsibilities recognized by law. Still, common-law partners are given less legal recognition than marital couples within some provincial and territorial laws.⁵⁴ Some provinces have statutes that govern common-law relationships. For instance, in Alberta the Adult Interdependent Relationships Act (AIRA)⁵⁵ altered over 60 statutes to be inclusive of interdependent relationships. An adult interdependent partner (AIP) is someone who a person has lived with for three continuous years or who is an interdependent partner based on a series of economic and domestic factors, such as financial interdependence, exclusivity or owning property together. One does not have to be in a conjugal relationship to be an AIP; however, one can only have one AIP at a time. Under the AIRA, entering into a marriage with a partner who is not your present AIP, dissolves the original AIP relationship.⁵⁶ In addition, a person may not enter into an AIP if she/he is already living with another married spouse. Notably, an AIP cannot be entered into by someone under the age of 16 years unless she/he has prior written consent from her/his guardians.⁵⁷

Therefore, it is not possible under the AIRA to have a marriage and an AIP co-existing at the same time. A polygamous family in Alberta would be treated as a married couple with an extra adult or adults living in the same household. The individuals who are legally married are the only people that would have legal relationship rights and responsibilities pertaining to the other partner.

Divorce and Relationship Breakdown

Under the Divorce Act,⁵⁸ the sole ground for divorce is breakdown of the marriage. A couple can establish this in one of three ways:

• the couple has lived separate and apart for a period of one year;
  
  
• there has been adultery by the other spouse; or
  
  
• there has been mental or physical cruelty of the other spouse.⁵⁹

In a polygamous relationship, the issue of adultery would be almost impossible to prove. This is because one of the bars to divorce is condonation.⁶⁰ If a woman forgives her spouse for being adulterous, then she cannot file for divorce based on that very same adultery. In a polygamous community, it is accepted that one husband has several wives. Therefore, one of the wives could not file for adultery when she has condoned the very act upon which she is filing for divorce. However, she would be able to file for divorce under the other two grounds. The most common ground used in divorces is that of living one year separate and apart.

Part of the difficulty in obtaining divorce in Bountiful arises because of the way in which the marriage is entered. Only the first wife will have legal marriage rights, while subsequent wives will have no legal relationship status. The "first wife" spot in Bountiful is sometimes given to the first woman a husband takes on, while in other instances it is saved for future use. One such instance occurs when young women are sent across the U.S. border from Utah as Bountiful brides. Bountiful is always in need of more women to assign to husbands and the American brides cannot immigrate unless they get legally married to a Canadian citizen. Therefore, Bountiful husbands have at times been advised to save the legal marriage spot for an American bride (Palmer 2005).

This type of situation provides an example of how a woman's legal rights could be jeopardized, because polygamy lies outside of the "two spouse" standard. In this situation, the first wife would be common law until a legal marriage took place. Then, when the husband took a second celestial wife from the United States in legal marriage, he would be seen in legal terms as splitting up with the first common-law partner. Yet, in reality the situation would be starkly different, because the law would not recognize the union as involving three people.

Several issues would arise from this situation. First, the common-law wife would technically be able to file for spousal and child support. The limitations legislationin each province would limit the time period in which she could file for spousal support.⁶¹ In reality, however, the common-law wife of Bountiful would continue living in the family unit and would not access her legal rights. If the common-law wife chose to leave the family unit years after her common-law husband had been legally married, technically, the limitation period for the common-law wife to file for support payments would have passed. The law would assume her right to support had been extinguished and no other law would account for the fact that she was in a polygamous relationship during that time period. She may, however, be able to access child support payments, because this is an ongoing right of the child throughout her/his youth.

Many women get married as teenage girls who know nothing beyond life in Bountiful. This makes them extremely vulnerable and unknowledgeable about their legal rights (BC 1993: 11). In reality, leaving a celestial union in Bountiful is seldom done without the permission of the leaders. A wife is sometimes given permission or asked to leave her present husband to be re-assigned within the community. Often, this happens because one husband has fallen out of political favour (Palmer 2005). If a wife were to leave without permission, she would risk losing her entire community. Since Bountiful operates as a completely integrated community, with as little outside influence as possible, this type of move would be extremely difficult. Religion, family relations, childhood education, business affairs and social interaction are all conducted within the confines of the Bountiful group (BC 1993: 6). Therefore, if a woman acts outside of this system, she risks being ostracized from the only community she knows - one which encompasses her entire life and well-being, and that of her children.

The fact that women are so restricted in Bountiful that they are unable to access outside help further increases the limitations placed on them by a polygamous system. Women who want to keep their children with them are given no other option but to subscribe to the system in which Bountiful operates. This further decreases women's equality rights, because their choices are limited if they are to protect their children and the way of life they have come to know. Given the choice between the status quo and breaking outside of a tightly monitored polygamous system, women are given very little room to instigate change or increase equality within the community. For women who risk going outside of Bountiful, the chances of receiving the legal benefits that a monogamous relationship would be entitled to are greatly reduced depending on whether they are a legally married spouse.

Support and Division of Property

To determine spousal support payments, the courts will look at the length of time a couple was together, the functions of each spouse during the relationship and any previous order dealing with spousal or child support. If a wife left her husband in Bountiful, obtaining support would be very complicated. If she were the legally married wife, she would be able to access support. However, the fact that the husband would be supporting not just one other wife, but several wives and many children would affect the standard of living for the family members left behind. If the wife who left the relationship were a common-law wife, she would have no legal status in the relationship, because the husband would be legally married already.⁶²

A more pressing issue in Bountiful is whether ex-wives would access the support structure even if it were available to them. In a community that is so insular it avoids outside influence at all cost, women are less likely to ask the courts to intervene on their behalf. In addition, there is the added issue that the leaders control the movement of women between husbands and would likely curtail any legal rights the women have in the interest of limiting outside involvement. This is especially problematic when discussing the rights of children to proper support payments. It is the right of the child to be properly taken care of by her/his parents. Without a system that recognizes these unions or prosecutes them and tries to prevent them from happening, the potential for harm to children is increased as is the inequality of women and children.

For women who actually leave the Bountiful community, there are certain social and legal realities that could prevent full access to division of property. For instance, as noted, the deeds to property in Bountiful have, for the most part, been signed over to the United Effort Plan (UEP). This means that the legal title to much of Bountiful's land is in the name of the group leaders, and that many families are tenants-at-will in their own homes (BC 1993: 7). Therefore, any claim against an ex-husband of Bountiful for the so-called family home would be futile. The ex-wife would be forced to devise a legal claim against the UEP itself, which would be much more difficult and would not take into account family law issues, such as the responsibility of the husband to support a wife who may, in certain circumstances, have limited education or be a stay-at-home mother.

These issues are complicated by the fact that even in families where the husband owns his land, there would still be other wives left in the family home to which an ex-wife is laying claim. With regard to support payments, the husband would already be supporting many wives and children on limited family resources. Even if the wife who was married filed for a legal divorce, the husband could claim the burden of all the other children still living in his household. While the law only recognizes two spouses, it does not limit the number of children who can lay claim to a parent.⁶³ This argument of limited resources could also be made regarding monogamous families where the husband takes on a new family and has limited resources. However, the extent of the harm is increased in communities, such as Bountiful, because of the large number of women and children who are in any one family.

It should be noted that there are other religious communities in Canada that practise communal property ownership, such as the Hutterites. Although most litigation regarding Hutterite colonies has involved membership issues,⁶⁴ a pre-Charter Supreme Court of Canada decision upheld the validity of Alberta legislation that prohibited communal property ownership, even though this was a critical aspect of the Hutterite religious faith.⁶⁵ (This legislation was subsequently repealed.) Family law concerns were not behind the anti-communal property legislation. There is little or no reported case law regarding individual men and women leaving Hutterite colonies and arguing for property ownership, whether because of divorce or other reasons. This is because it is clear from the articles of association that govern the communities, that persons who leave Hutterite colonies do not have any property claim.⁶⁶ Further, although Hutterites practise communal ownership of property, they do not practise polygamy.

In summary, the law does not account for polygamous families when according rights for spousal support, child support and division of property.⁶⁷ The biggest harm in this is that children of these unions are not properly cared for, because their right to support is protected, but intangible. While these children may have a legal right to their father's support, the reality of that right is not likely to be realized. If the child is in a community like Bountiful, where families are discouraged from accessing outside legal remedies or, alternatively, the family lives in such poverty that support payments would be minimal, the child will be forced to live in poverty. Children who have many siblings in a family with several wives will have access to a significantly reduced amount of support. In particular, in a community where there is no income earned by the wives, and the only support for the children stems from a father who has responsibility for many wives, families can suffer financially. While this situation is also seen in monogamous families, it is important to note that the sheer number of wives and children in a polygamous union would exacerbate the same problems experienced by the break-up of a similarly situated two-parent family.

Custody and Access

Courts determine custody and access of children by relying on the "best interest of the child" test. A number of factors are looked at in determining the best interest of the child, such as the amount of time parents can spend with the child, the physical and psychological well-being of the child, and related factors. Courts can choose from a number of types of custodial arrangements, but joint custody (where the parents have some type of shared custodial arrangement) is normally preferred.

In Bountiful, a new baby is showered with attention, but as the baby grows, the time spent with the child diminishes. ⁶⁸ In a family with one father and up to 40 or even 80 children, there would naturally be a drastically reduced amount of time to spend with each child. In communities like Bountiful, custody and access is complicated by the fact that one woman may have children from many different husbands, if she has been re-assigned from one husband to another a number of times.

Child sexual assault is not in the best interest of any child. Children in Bountiful are reportedly at risk of sexual assault by male members of the group. A 1993 report noted that there had been three recent sex offence trials involving Bountiful males and that the potential for abuse arose, because of the way the community was structured.

The possibility raised is that within such an insular community, where unquestioned obedience to leaders' directives places rigorous demands upon members, personal problems express themselves in furtive, often abusive, ways. The pressures of dealing with individual problems within an extraordinarily conformist community can be overwhelming; and in Bountiful there are few sanctioned outlets for the resulting frustration (BC 1993: 11).

Since that 1993 report, there have been other allegations of abuse. Because it is a very serious allegation with serious consequences, courts must be very careful when determining whether sexual abuse has occurred. Debbie Palmer (2005), a former Bountiful wife, noted how difficult it is to get children to admit to abuse in the community. Community members teach children to be silent about what is happening. In a complaint involving one of her daughters, Ms. Palmer noted that people in the community tried to silence her daughter before the authorities received evidence of the offence.

In terms of the children, life is complicated, because they have one biological mother and father, and yet they interact with many other pseudo-mothers. When a wife decides to leave Bountiful, it is rare that she is able to take her children with her. The community fights to keep the children within the community (Palmer 2005). For the children who do stay in Bountiful, the chances of access by the estranged mother are greatly reduced. The chances of having joint custody and access would be very difficult given the ideological differences between someone within Bountiful and someone outside of it. While some monogamous families may also have their ideological differences as well, Bountiful has the additional issue of limited access to those who leave the community.

Another complex issue is determining the rights of the other mothers to children who are not biologically theirs, but perhaps with whom the children have bonded particularly well. Also, when the leaders move a wife to a new husband for political reasons, how do the children feel about losing their entire family of siblings and having to start again in a new family?

In families that are polygamous outside of a group like Bountiful, the issues would be that of losing one's siblings. In the break-up of a two-parent family, the children might have to split time with parents, but will still have the continuity of their siblings. In the case of polygamy, the children could end up leaving behind children of two or more other wives. If the ex-wife moves away from the community, the likelihood of ever seeing these children is greatly reduced.

Social Assistance

In each province, regulations indicate how a spouse or partner will be taken into consideration when calculating the amount a household is entitled to for social assistance. In Alberta, anyone who is either a spouse, an AIP,⁶⁹ or who has a child with the welfare recipient, will have their income included in the household for the purposes of determining eligibility for social assistance.⁷⁰ British Columbia has similar legislation⁷¹; however, Narinder Serown (2005) from the Interior Service Centre near Bountiful has noted that his office has not had to deal with the issue of polygamy and eligibility. This information confirms that the main problem with social assistance legislation ignoring the existence of polygamous unions is that the legislation has not addressed this issue and therefore does not take into consideration how polygamous families should be covered.

For instance, if a Canadian from a cultural background that permits polygamy had two wives, the social assistance system would likely miss the polygamous nature of his family. The legally married couple in that situation would be treated as a couple for the purposes of determining the household income, while the second wife who did not in fact have legal married status would be treated as a single person who just happened to be living with a married couple. The income of the "second wife" would not be included in the household income of the legally married couple. If she did not have an income she would apply for welfare as an independent. So while all parties would be covered by welfare, the true nature of the family would not have been taken into consideration in these calculations.

The purpose of the spouse-in-the-house sections of this type of legislation is to determine household income for interdependent partners, co-parents and spouses. In doing this, the welfare system accounts for families supporting one another within a particular household. The failure of social assistance to recognize that there is a three-person household would allow that household to collect an increased income as compared to other households. However, even if a polygamous family were legally recognized, legislation such as Alberta's Income and Employment Supports Act only contemplates households with the possibility of two partners. Therefore, there is no legal scheme on which to decide what a polygamous family unit would be entitled to from social assistance.

Social assistance is a means of levelling inequities between the wealthy and the impoverished. Women, especially, are in need of this type of equalization, because of poverty issues and inequalities between men and women. The welfare system does not contemplate polygamous unions and, as such, the situation of women within these unions has not been examined. It is unknown what inequities would result if polygamous families accessed social assistance either through fraudulent means or if the system were opened to these families. Research has already indicated that the spouse in the house legislation has a negative effect on women.⁷² The problem with ignoring the existence of polygamous families is that this negative effect could be compounded. At the very least, continuing on in the present situation, without legal recognition or alternatively prohibition of polygamous unions, puts women who need support at a disadvantage.

The following exploratory questions are not contemplated by welfare legislation and would need to be answered to understand the repercussions: Are there monetary inequities among wives in a polygamous relationship? What system should be used to determine a fair household income in a polygamous situation? How is welfare fraud prevented when only the first wife has legal marriage rights?

Most important, it would be essential to examine whether polygamous families are indeed self-sustainable given the social circumstances of these communities. The social welfare system is set up as a necessary safety net for those individuals and families living in poverty. In Bountiful, many of the women are expected to care for the family home and for children, while, for the most part, men work outside the home.⁷³ With men having 2 to 12 wives, and up to 80 children, it would appear to be virtually impossible for any family to make ends meet monetarily. At present, women and children who are in need of this welfare system may be able to access it through deceptive means, but even then the amount of money they would receive would be based on an incorrect version of the reality of their lived experience.

On the flip side, if the social welfare system were to take into account the reality of a polygamous lifestyle, and it was confirmed that these families for the most part were not self-sustainable, this would cause a drain on government funds. While all families deserve to have access to a social safety net, the decision to support polygamous families would take special consideration.

Benefits

Benefits provide a family with health, dental and disability funding. The cost to the family is usually minimal and is often subsidized by the employer. There are maximums within benefit plans that allow each family member to access up to a certain dollar figure of health services. Usually, there is the option of a single benefit plan or a family one, the latter covering two spouses and children. Polygamous unions are not contemplated within benefit schemes. An employer offers a benefit plan as a perk of being an employee and also as a means to keep employees healthy. Often, the requirements of having family access the scheme are not very stringent. The employer usually has some idea that the employee is common law or married and that there are children from that relationship. The insurance carrier for the benefit plan does not always require proof of the familial relationships.

While a second or third wife would not be able to apply for benefits, the children of those wives could easily be grouped with the first wife and receive access to benefits. This creates two problems. First, it creates an inequity between first and subsequent wives. The first wife has access to health, dental and disability benefits through her husband while the other wives do not. Second, it puts a strain on insurance carriers who could be covering more children than those who are part of the first marriage or partnership. All of these children deserve coverage, as do each of the wives. However, insurance carriers would likely decide to increase premiums if there were a substantial number of polygamous families in an area.

Polygamous families that are not part of a community but perhaps have come from another country and managed to keep their union to more than one wife a secret, have equally difficult issues. The fact that only one wife has access to health benefits could create an imbalance of power among women in the family unit. This situation could add to the disempowerment of women in the family unit, while at the same time creating a competition among women for limited resources. So, while benefit plans are meant to help families lead healthy lives, the present system is not designed to meet the needs of polygamous families. Yet, this is not necessarily a reason to change laws to include polygamous families, but instead a reflection of how non-prosecuted polygamy laws can contribute to a system of inequity. The issue of a lack of benefits can only be addressed in a system where polygamy is legal and laws are changed to be inclusive, or where polygamy is prosecuted and the negative social results of polygamy are addressed.

Taxation

Similar to other laws affecting relationships, our taxation system uses the language of "spouse" or "common-law partner" implying that it is assumed there are only two people in the relationship.⁷⁴ While the two individuals who are legally married in a polygamous family would have full rights and responsibilities under our taxation system, the other wives would be excluded. If a husband were to claim all of his children from each of his wives, he would be in a situation where his deductions outweighed or greatly reduced any taxes owed. Second, third and fourth common-law wives in a polygamous union would not have their relationship status recognized within the taxation system. This would be problematic if, for instance, the husband died and only the legally married wife received the tax benefits of his death. The taxation system is complex and has not taken into consideration polygamous families. This fact leaves the tax system open to imposing many inequities on common-law wives in polygamous unions and adding to the harm caused to women involved in these unions.

Summary

The above examination demonstrates that because our law is based on a conception of only two spouses in a relationship, legalizing polygamy would cause much chaos and confusion. However, if there were a recognized equality issue at stake, the creation of chaos would not be a valid defence against upholding equality (e.g., by enacting legislation to include polygamous relationships). This exploration of how the law is structured around two spouses, and the resulting major difficulties in regulating polygamous unions, demonstrates the risk to which we expose women and children. Without lawmakers either regulating polygamy and altering all of the above legislation to take into account the issues resulting from polygamy, or legal authorities prosecuting polygamy and working on a means to combat it in the future, these families are at risk. Women's rights are not being recognized, and women who leave these polygamous unions are left in dire poverty. At the same time, children's rights are diminished, because of the poverty and reluctance to ask for outside help. Alternatively, women who stay in communities, such as Bountiful, have little opportunity to lobby for change that would support their equality rights and those of their children.

Women and Girls' Equality Rights and the Non-Prosecution of Polygamy

Minority Group Rights and Equality

As we have seen, one cannot discuss the non-prosecution of polygamy in Canada without inviting an examination of the extent to which there is constitutional protection for religious and minority group rights. Religious or cultural minority groups are often most concerned about carving out a special status for their own practices and customs in the area of "personal law" (i.e., that area of law that concerns laws regarding marriage, divorce, child custody and support, division of matrimonial property and inheritance) (Okin 1998: 679). Accommodating the cultural practices of groups when those practices differ in whole or in part from the practices of mainstream society may seem the fair thing for a modern, pluralistic, democratic nation to do, all in the name of tolerance and respect for cultural diversity. In fact, respect for minorities has been recognized by the Supreme Court of Canada as a constitutional principle.⁷⁵

However, as noted, the accommodation of all practices of a minority cultural or religious group may, in some cases, create a situation where the vulnerable members of that group are subjected to harm. Polygamy (at least as practised in Bountiful) may well be one of those situations. In particular, as already noted, polygamy may affect the equality rights of women and girls.

Thus, an unfiltered acceptance of minority group rights would only ensure that any inequality integral to a polygamous community, such as Bountiful, would continue to thrive. This would create a serious problem for vulnerable individual members of such a community whose status may be deigned secondary by the group's leaders, all in the name of traditional religious or cultural practices. The reality of culture-based gender discrimination is such that the most insidious forms of it are practised in that private sphere of life where historically the highest bar was raised against remedial state action. Therefore, if one of the fundamental premises of a legal system in a modern democracy is that the personal liberties and rights of individuals matter, then our courts need to tread carefully when they adjudicate a matter that involves an assertion of protection for a religious rite on behalf of a group. One legal writer (Kymlicka 1998: 162-163) succinctly put the issue in the following terms: "If we wish to defend individual freedom of conscience, and not just group tolerance, we must reject the communitarian idea that people's ends are fixed and beyond rational revision. We must endorse the traditional belief in autonomy."

Even so, there may be a tendency on the part of otherwise well-intentioned persons to regard polygamy as an aberration which, since it is practised by only an extremely small number of people in Canada, should be accorded a "leave well enough alone" respect. After all, so the argument goes, if no laws are being broken and the children of polygamous unions are being looked after, who are we to judge how individuals or even an entire community like Bountiful should lead their lives? There may even be some advocates of a "group rights" model of multiculturalism who would advocate a policy of tolerance toward, if not formal legal recognition of, the religious and cultural practices of a polygamous community. They might argue that so long as a polygamous community respects Canadian laws as they pertain to the community's relationship with those it considers "outsiders," the wider community should respect the religious and cultural practices of that community. However, this argument is problematic. If polygamy were to be accorded official sanction by government policy, a democratic country would be permitting the existence in Bountiful of a community where rights normally accruing to citizens are simply not present or, if they are present, they are diminished to the point of irrelevance. To put the issue in words reminiscent of a passage from Animal Farm,⁷⁶ the state would be saying that although all Canadians may be equal before and under the law according to the Charter, some Canadians are less equal than others and there is nothing that can or should be done about it.

Therefore, a democratic conception of minority rights should carry an inherent acknowledgment of the difficulty, if not the impossibility, of accommodating all the practices of a given minority religious or cultural group. Some religious or cultural groups are loathe to have their particular sets of cultural traditions informed by secular democratic values like equality and individual autonomy, and the FLDS community of Bountiful is certainly one of them. This begs a vexing question. Why should a modern democracy which professes gender equality as a fundamental constitutional right pursuant to s. 28 of the Charter, give legal sanction to the cultural and religious practices of a community when such practices relegate females to second-class citizenship?

Failure to Prosecute Polygamy Violates Charter subs. 15(1)

If one accepts that women (and children) are adversely affected by polygamy, either the government's failure to continue to legislate against polygamy or its failure to enforce existing Criminal Code provisions on polygamy discriminates against women (and children) under Charter subs. 15(1).

Failure to Continue to Legislate

There are legal decisions that deal with the government's failure to act and the Charter. Cases involving the government's positive duty to act usually involve Charter subs. 15(1). For example, in Vriend v. Alberta,⁷⁷ the Supreme Court of Canada held that Alberta's Individual's Rights Protection Act violated Charter subs. 15(1), because it did not include "sexual orientation" as a ground for protection under this human rights legislation. In Eldridge v. British Columbia (Attorney General),⁷⁸ the government's failure to provide sign language interpretation for hearing impaired patients was held to violate their Charter subs. 15(1) rights.

In Dunmore v. Ontario (Attorney General),⁷⁹ the Supreme Court of Canada dealt with the issue of whether excluding agricultural workers from the labour relations scheme infringed their rights under Charter s. 2(d) (freedom of association). The Supreme Court (per Bastarache J. et al.) noted that ordinarily the Charter does not oblige the state to take affirmative action to safeguard or facilitate the exercise of fundamental freedoms.⁸⁰ The Supreme Court stressed that it is more usual for cases dealing with under-inclusion to be examined under Charter subs. 15(1).⁸¹ However, where history has shown that the posture of government restraint will expose people to harm (e.g., unfair labour practices), the Charter may impose a positive obligation on the state to extend protective legislation to unprotected groups.⁸² Thus, excluding individuals from a protective regime may contribute substantially to the violation of protected freedoms. The Supreme Court grounded the claim in fundamental Charter freedoms rather than in access to a particular statutory regime.⁸³ The Court also noted that the doctrine expressed in the case does not, on its own, oblige the government to act where it has not already legislated in a particular area.⁸⁴ To be clear, if the state chooses to legislate in a particular area, it must do so in a way that is consistent with the Charter subs. 15(1), and this would mean that unprotected groups should be included.

Porter (1998: 78-79) noted that in both Vriend and Eldridge, at issue was the under-inclusiveness of existing government legislation or practice rather than the lack of legislation. This was also the case in Dunmore. However, Porter also noted that the Supreme Court of Canada's finding in Vriend was justified by the disproportionate impact of the exclusion of sexual orientation as a substantive equality issue. Thus, if the lack of a government action has a disproportionate impact on a disadvantaged group, Charter subs. 15(1) could be breached. Further, Justice Cory held in Vriend that "Dianne Pothier has correctly observed that [Charter] s. 32 is 'worded broadly enough to cover positive obligations on a legislature such that the Charter will be engaged even if the legislature refuses to exercise its authority.'"⁸⁵ Porter (1998: 79) also argued that the majority decision in Vriend makes it clear that subs. 15(1) obligates the government to protect and promote equality in all areas under its jurisdiction. He went on to state (1998: 79) that legislative inaction is not neutral; one must analyze the effects of inaction to determine if it is inconsistent with Charter subs. 15(1).

Macklem (1999: ¶3) argued that the decision in Vriend, coupled with the decision in R. v. Morgentaler,⁸⁶ illustrate that the Charter can be used to protect minorities from the consequences of the "absence of will on the part of the majority." However, he also expressed some reservations about the conclusion that the Charter imposes positive duties on the government. Rather, he would prefer to find that some omissions on the part of the government are actually actions, which can be the subject of a Charter challenge (1999: ¶¶26-39).

Polygamy is the subject of a prohibition under the Criminal Code. If the government were to repeal Code s. 293, would this violate Charter subs. 15(1)? There are no cases that indicate whether repealing a law would result in a violation of the Charter. If the Supreme Court of Canada were to determine that the Code is under-inclusive, because the polygamy law has been repealed, one could speculate that they could possibly find this situation to have a disproportionate impact on women and children, and therefore Charter subs. 15(1) would be breached. As noted above, Charter subs. 15(1) obligates the government to protect and promote equality in all areas under its jurisdiction: criminal law is clearly under Parliament's jurisdiction. The lack ofCode protection for women (and children) through anti-polygamy legislation could offend their rights under Charter subs. 15(1). Because of the lack of legal precedent, this conclusion is purely speculative at this point. In addition, this is a very difficult argument to make because courts have been very clear that the government's positive duty to act only applies where the government has already "acted."⁸⁷ It may not be enough to say that the government has acted simply by enacting the anti-polygamy prohibition. Also as noted above, it is well within the government's purview to choose other methods to deal with undesirable behaviours, such as regulation instead of criminalization.

Whether the lack of anti-polygamy legislation could be saved under Charter s. 1 is discussed below.

Failure to Enforce

A second possible violation of Charter subs. 15(1) is the failure by the government to enforce the anti-polygamy provision of the Code. Using the Law test, one could argue that the failure to enforce this legislation has serious equality implications. The argument would be that the government, having enacted anti-polygamy legislation, has a positive duty to act to enforce it.

By not prosecuting Code s. 293, the state is, in effect, saying to the residents of Bountiful that Canada will, irrespective of the consequences, tolerate polygamy. By not prosecuting s. 293, the legal system would be saying in effect that, insofar as polygamous groups go, the old philosophical and legal distinction between private and public spheres of activity should be finely if narrowly applied. The inherent dilemma in such an approach is that gender-based discrimination is often most acutely experienced in the so-called private sphere. Indeed, in many traditional cultures, the strict control of women is enforced in the private sphere through actual or symbolic fathers, either acting alone or through the complicity of their first wives (Okin 1998: 679).

Not prosecuting polygamy in Canada could be interpreted by some as de facto recognition of the special status a unique community has to maintain effectively a separate social structure with a set of values that prepares women for a lifetime of subservience within the confines of that community, with fewer rights than women living within the wider Canadian community. Moreover, de facto recognition of polygamy as practised in Bountiful perpetuates domestic roles for women and removes any incentive for females to attend school beyond the junior high level, which further restricts the lifestyle choices that might otherwise be available.

Some people involved in the practice of polygamy might argue that it is too late to begin to prosecute under s. 293 of the Code after many years of indifference to the practice. However, one can point to the well-known indifference of society and authorities to spousal abuse over many decades, even though criminal laws dealing with assault existed. With the assistance of the women's movement, the state became aware of the gender equality implications of ignoring abuse (which largely occurs in the private sphere) and is now prosecuting spousal abuse cases.⁸⁸

Charter of Rights s. 1

Once the court has decided that legislation offends a particular section of the Charter, the government has the opportunity to defend its actions by providing evidence that its laws or actions are demonstrably justified in a free and democratic society under Charter s. 1. In the case of anti-polygamy laws, the government would be defending its actions in removing the prohibition against polygamy from the Criminal Code, or in not enforcing this provision. In the Dunmore decision, the Supreme Court of Canada analyzed whether repealing certain protections for agricultural workers under the Ontario Agricultural Labour Relations Act could be saved by Charter s. 1. The Supreme Court of Canada relied on the guidelines set down in R. v. Oakes⁸⁹to determine whether the limitation of a right in this manner may be saved by Charter s. 1. The court noted that the government must establish that the objective underlying the limitation is of sufficient importance to warrant overriding a constitutionally protected right or freedom and that the means chosen to reach this objective are proportionate.⁹⁰ In making this analysis, the court must pay close attention to the factual and social context surrounding the enactment of the legislation.⁹¹ These factors assist the court in characterizing the objective of the law that is under scrutiny.

Polygamy is dealt with under the Criminal Code, which was enacted to protect Canadians from harm (see discussion above). Thus, the government would have to justify not protecting Canadians from the harms associated with polygamy, either through repealing anti-polygamy law or through not enforcing it. One major justification the government would likely rely on in either case is that anti-polygamy laws infringe the right to freedom of religion under Charter s. 2(a). If the government seeks to rely on this justification, the court would be faced with balancing the right to gender equality with the right to freedom of religion. This balancing is discussed in Part II.