Legal Background to the Controversy on Polygamy in Canada

Earlier this week, a special prosecutor in British Columbia concluded there was insufficient evidence to lay criminal charges against members of a break-away Mormon polygamist colony in the town of Bountiful.

On a number of occasions in the past, the Crown had decided not to press charges against members of the community out of fear that the anti-polygamy sections of the Canadian Criminal Code might be struck down as an unjustifiable infringement on religious freedoms under the Charter of Rights and Freedoms.

The provincial government has announced that it is now considering a constitutional reference, a move that allows it to directly ask the courts to rule on the constitutional validity of the legislation, all the way to the Supreme Court of Canada if necessary.

There have recently been a number of studies on the legal aspects of the polygamy debate in Canada. In 2005 Status of Women Canada, a government agency that promotes gender equality, commissioned four research reports on the topic of polygamy:

• How Have Policy Approaches to Polygamy Responded to Women's Experiences and Rights? An International, Comparative Analysis: "Devising effective legislative and policy strategies for dealing with polygamy in Canada requires an analysis as to how practices associated with plural marriage affect the lives of women. This report seeks to illuminate how life within a polygamous marriage might affect women's social and economic status, as well as their overall health and well-being. This report also undertakes an examination of law and policy approaches to polygamy worldwide, with a view to assessing whether existing responses to polygamy adequately address the needs, rights and realities of women living within plural marriages. Based on this analysis, recommendations are made as to the most appropriate approach to polygamy in the Canadian context."
• An International Review of Polygamy: Legal and Policy Implications for Canada: "Status of Women Canada contracted the Canadian Research Institute for Law and the Family to conduct an international review of polygamy, examining the social, legal and policy implications for Canada. This paper sets the present controversy in Canada in a broader international context, by discussing social science literature and legal developments in other countries, and relating this international material to the situation in our country. The paper reviews the social science literature and media reports about the effects of polygamy on women and children in Canada and other countries. Legal issues that have arisen in other countries related to polygamy are summarized, with a particular focus on countries that have legal systems most similar to our own. The current legal and policy issues concerning polygamy in Canada are also discussed. The paper concludes by considering how the information and developments of other countries shed light on the current controversies in Canada, offering legal analysis and policy recommendations for this country."
• Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada: "Recognition of valid foreign polygamous marriages raises the issue of how Canadian law should respond to 'plural unions' entered into within Canada in some religious communities. The law does not consider such unions to be marriages. They are legal nullities. No civil legal consequences result merely from the fact that the parties went through a religious ceremony. There are, however, criminal consequences. Section 293 of the Criminal Code criminalizes polygamy and by its terms applies both to those who enter into a plural union within Canada and to parties to a valid foreign polygamous marriage who 'practise' polygamy within Canada. This report examines the history, efficacy and constitutionality of s. 293 of the Criminal Code and recommends that this provision be repealed. Finally, this report considers arguments for and against permitting polygamous marriages to take place under Canada's domestic laws, specifically, the constitutional arguments that could be made. The report recommends that Canada prepare for a constitutional challenge to the limitation of marriage to two persons."
• Separate and Unequal: The Women and Children of Polygamy: "Polygamy is illegal in Canada pursuant to s. 293 of the Criminal Code of Canada. However, a polygamous community thrives in Bountiful, British Columbia and, to date, nobody from the community has been prosecuted for violating s. 293. Justice officials in British Columbia say prosecuting s. 293 would invite a defence challenge to the section's constitutionality, based on the argument that the section infringes the guarantee to religious freedom as set out in s. 2(a) of the Canadian Charter of Rights and Freedoms. However, an analysis of the practice of polygamy in Canada, and how it undermines the equality rights of women and children, suggests that even if s. 293 impinges on religious freedom, such a limit is justified, because of the inherent harms polygamy engenders for the women and children of polygamous families."

The following year, 2006, a report entitled Polygyny and Canada's Obligations under International Human Rights Law was prepared for Justice Canada. The document outlined the harms associated with polygamy and emphasized that polygamy is a form of discrimination and a violation of international law. It recommended vigorous action to address the practice in Canada and measures to protect the women and children living in or transitioning from polygamous families.