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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
CONCLUSION AND LAW REFORM RECOMMENDATION
Polygamy is a complicated issue. Using Bountiful as a running example throughout the paper, we analyzed whether anti-polygamy legislation violates Charter s. 2(a) and cannot be saved by Charter s. 1. This involved looking at several key principles, such as freedom of religion and equality. We noted that while there are no Canadian cases dealing with polygamy and the Charter, courts will find that essential rights and freedoms must give way when their exercise infringes public safety, the personal safety of others or causes other real harms. We have concluded that the practice of polygamy is one of those cases. We have provided a number of reasons why not enforcing anti-polygamy legislation is harmful to women and girl's equality rights. To illustrate this point, we have demonstrated the implications related to the social and legal status of women if the government neither prosecutes nor legalizes polygamy. We conclude that while anti-polygamy law most likely infringes Charter s. 2(a), it would be saved by Charter s. 1, because of the associated harms of non-prosecution to women and girl's
equality.
American experience in Arizona and Utah has shown that prosecuting polygamy can have significant implications for all persons involved. However, based on the harms associated with polygamy as it is practised in Bountiful, there do not appear to be any alternatives to prosecution, however difficult it may be. Nevertheless, the repercussions experienced in the United States when authorities prosecuted polygamy on a community scale demonstrate that Canadian authorities may wish to exercise their discretion to deal with the issue on a more individual basis. Also, judges may choose to recognize the sensitive equality issues existing in this very unique community during the sentencing phase.
If necessary, what reform could be made to the wording in Code s. 293 so it would not infringe the Charter s. 2(a)? We have concluded that Code s. 293 would likely be found to infringe Charter s. 2(a) but would be saved by s. 1. We do not find any reforms to the current wording are necessary to address Charter s. 2(a) concerns. It should be noted that this paper does not analyze whether other sections, such as Charter s. 7, would be violated because, for example, the wording is too vague. That issue is beyond the scope of this discussion. We leave that analysis for another day.
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