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The Fundamentalist Church of Jesus
Christ of Later Day Saints (FLDS)

Is the Canadian anti-polygamy law
constitutional & thus enforceable?

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Disclaimer:

The following essay is for general information only. Do not use it to make any personal decisions without first consulting a lawyer knowledgeable about family law in your area.

Laws concerning polygamy in Canada:

As described elsewhere, the Section 293 of the Criminal Code of Canada prohibits:

"... 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." 1

That would presumably cover an instance where a man

bulletMarried one woman in a legal ceremony, and later entered into some kind of unregistered rituals -- regarded as marriages only by their religious group -- with one or more additional women, or

bullet Entered into a series of unregistered rituals regarded as marriages by their faith group.

Yet it would appear to not be applicable to a case where a man:

bulletIs married to a woman and simultaneously carries on a long-term affair with another woman. Adultery -- even long-term adultery -- is frowned upon but is not illegal in Canada.

Members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) have openly practiced polygyny in both the U.S. and Canada for many decades. [Polygyny is that form of polygamy involving one man and multiple women.]

In 1990, some women fled such marriages in Bountiful, BC and demanded an investigation into why the police were ignoring the multiple marriages in the town. There haved been other investigations since that time, but charges have never been laid.

Many legal experts believe that Section 293 is probably unconstitutional. It conflicts with the Mormons' religious freedom as guaranteed by Canada's Charter of Rights and Freedoms -- Canada's constitution. If brought to court, the Province would probably lose the case.

A pro-polygamy study:

During 2005-FEB the Canadian government -- controlled by the Liberal Party of Canada at the time -- introduced Bill C-38 to Parliament to legalize same-sex marriage. A few weeks earlier, the Justice Department and Status of Women Canada issued a $150,000 grant to three law professors at Queen's University in Kingston, ON: Bita Amani, Martha Bailey, and Beverley Baines. The grant funded a study of the legal and social aspects of polygamy. A document issued by Status of Women Canada in 2005 stated:

"In order to best prepare for possible debate surrounding Canada's polygamy policy, critical research is needed...It is vital that researchers explore the impacts of polygamy on women and children and gender equality, as well as the challenges that polygamy presents to society."

The report was issued on 2006-JAN-12. It recommended decriminalizing polygamy in Canada 2 and changing "...legislation to help women and children living in plural relationships." 3,4

Beverley Baines is one of the report's authors. Referring to Section 293 of the Criminal Code, she said:

"The polygamy prohibition might be held as unconstitutional. The most likely Charter [of Rights and Freedoms -- Canada's Constitution] challenge would be brought by people claiming their freedom of their religion might be infringed. Those living in Bountiful would say polygamy is a religious tenet."

Martha Bailey, the main author, told The Canadian Press that criminalizing polygamy serves no good purpose. In an apparent reference to male Muslim immigrants with more than one wife, she asked:

"Why criminalize the behavior? We don't criminalize adultery. In light of the fact that we have a fairly permissive society, why are we singling out that particular form of behavior for criminalization?...No one is actually being prosecuted but the provision is still being used in the context of immigration and refugee stuff. People are not being admitted to the country."

Ms. Bailey noted that various Canadian laws should be changed to protect women in polygynous relationships by providing them with spousal supports and inheritance rights. She said:

"They are denied access to our divorce law.... You have a great deal of difficulty claiming your rights with access to children, custody of children and financial support for the children. We are starting to make accommodations for some small things in some of the provinces [such as] extending support law to women and children in any kind of marriage."

"Polygamous marriages are legal in some countries. They come to Canada, the vast majority of them will not know the law and they have no legal protection. They could be prosecuted. Suddenly, they're living in fear." 3,4

Ms. Bailey said that removing it from the Criminal Code would not require marriage laws to recognize polygamous relationships. It would only decriminalize the practice.

An anti-polygamy statement:

On 2007-AUG-18, the National Council of Women of Canada issued a statement opposing polygamy. They stated in part:

"Polygamy is a crime and it is abuse. NCWC has policy against polygamy, against the immigration and emigration of women and female children for sexual and breeding purposes, and against the abuse of women and children in polygamous communities."

They opposed a suggestion made by Richard Peck, British Columbia's special prosecutor, that the B.C. Appeal Court be asked "for an advisory opinion on whether the Criminal Code offence of polygamy can withstand a constitutional challenge." They asked for an immediate attempt to enforce the criminal code by laying of charges.

They noted that some have argued that criminalization of polygamy conflicts with the guarantees of freedom of religion in the Canadian Charter. They reject this argument, noting that:

"The fundamental freedom of conscience and religion as set out in section 2(a) of the Canadian Charter of Rights and Freedoms, often cited as a defence or reason not to intervene to help these female children, is subject to section 1 of the said Canadian Charter of Rights and Freedoms which states: 'The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.' Furthermore, polygamy has already been condemned as a contravention of women’s equality rights by the United Nations Office of the High Commissioner for Human Rights. The UN Declaration and Convention on the Elimination of all forms of Discrimination against Women (CEDAW), is the women’s Human Rights convention and came into force in 1979. Canada signed [it] on December 10, 1981. 6

Problems in applying the law:

North American governments have difficulty deciding how to handle polygamy for a number of reasons:

bulletThere is a conflict between:
bulletPublic morality -- which generally condemns polygamy -- and

bulletRespect for human rights -- which guarantee the right of people to enjoy "life, liberty and the pursuit of happiness," and thus to enter into their choice of many different marriage styles.

bulletThere is a conflict between the writings in the Hebrew Scriptures -- which describe at least eight different marriage and family types -- and the insistent of many conservative faith groups, and others, that marriage has existed unchanged for many millennia as between one man and one woman.

bulletThere is a conflict between two types of polygamous marriages:
  1. A rigid patriarchal form found in some Mormon sects and some other conservative religious groups, in which there are allegations that:

    bullet Their religion places extreme pressures on husbands and wives. In the Mormon form, it teaches that the only way a man can get into the highest of the three levels of Heaven and have a chance to become a god is to have at least three wives and many children; the only way a woman can get into that Heaven is to be invited by her husband.

    bullet The husband has essentially complete control over his wives and children.

    bulletThe wives are trapped and have few if any options;

    bullet Young women are alledged to have been sexually exploited and forced into marriages with much older men;
    bulletHuman trafficking in young women is common;

    bulletYoung boys are expelled from their home and town; and

    bulletPhysical abuse is common.

  2. A egalitarian family structure in which men and women of their own free will attempt to form a family structure with a maximum of cooperation and sharing, with a minimum of exploitation.

The pro-polygamy study compiled at Queen's University suggests that polygamy be decriminalized and that the government take an increased role in preventing abuses so apparently present in the patriarchal form. The anti-polygamy statement by the National Council of Women of Canada recommends that polygamy continue to be illegal, and that the government actively ban it in both its patriarchal and egalitarian forms.

The final resolution will probably follow recommendations of one of these two groups.

In 2009, Winston Blackmore, 55, and James Oler, 44 were charged under the criminal code. Each leads a separate faction within the FLDS in Bountiful, BC. Blackmore is alleged to have 19 to 25 wives and hundreds of children. Oler is alleged to have three wives. His case was dismissed on a technicality.

Rather than attempt to re-try Blackmore and Oler, the Attorney General asked the B.C. Supreme court for a reference: this is a petition to the court to rule on the constitutionality of the law. A hearing commenced on 2010-NOV-20.

References used:

  1. "Unofficial versions of the Criminal Code of Canada, sections 279 to 317," at: http://lois.justice.gc.ca/
  2. "Government Study in Canada Recommends De-criminalizing Polygamy," TruthBearer.com, at: http://www.pro-polygamy.com/
  3. Martha Bailey, et al., "Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada," Status of Women, Canada, at: http://www.swc-cfc.gc.ca/
  4. Melissa Leong, "Legalize polygamy: study. Ottawa paid for report that says Charter might negate criminal ban," National Post, 2006-JAN-13, at: http://www.canada.com/
  5. "Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of [four] Policy Research Reports," Status of Women, Canada, at: http://www.swc-cfc.gc.ca/
  6. Karen Dempsey, "Editorial from the National Council of Women of Canada re Polygamy," National Council, 2007-AUG-16, at: http://www.ncwc.ca/

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Copyright © 2006 to 2010 by Ontario Consultants on Religious Tolerance
Portions originally written: 2006-AUG-20
Latest update: 2010-DEC-04
Author: B.A. Robinson

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