Legal Research

Polygamy Reference: One to Watch

By Simon Fodden

British Columbia, home of Bountiful, the town that boasts a sect of religious polygamists, finally bit the bullet a while back and took steps to clarify the legality of polygamy in Canada. After a false start through criminal charges against two men (see Blackmore v. British Columbia (Attorney General) 2009 BCSC 1299, the province began a reference in the B.C. Supreme Court under the Constitutional Question Act R.S.B.C. 1996, c. 68, s. 1, asking:

a. Is section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

b. What are the necessary elements of the offence in section 293 of the Criminal Code of Canada? Without limiting this question, does section 293 require that the polygamy or conjugal union in question involved a minor, or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?

That action is slowly gathering procedural steam, after some wrangling, sorting out who are the appropriate or necessary parties.

Unless the matter is for some reason withdrawn at a stage, I have little doubt that it will go all the way to the Supreme Court of Canada in due course. It’s one of those questions that are of small practical consequence but great public interest. It’s also a Charter question of some difficulty.

The potential harms from sanctioned polygamy seem to me to be two: 1). injury to the majoritarian understanding of marriage, one of society’s fundamental categories, and 2). injury to women involved in polygamous marriages.

I’m not particularly interested in the first of these, myself. It’s hard nowadays, in Canada at least, to worry sensibly about the difference between “legal” marriage and cohabitation. For example, no public official would suggest taking legal steps to interfere with an informal ménage à trois (ou quatre, cinq, etc.) — this, notwithstanding the polygamy section of the Code which reads in part:

293. (1) Every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into . . .

(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 . . .

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The second is, for me, more troubling, because polygamy is a thoroughly gendered practice. A little piece of doggerel (bitcherel?) I composed for my family property students puts it this way:

The same sauce for the goose and the gander’s
Prescribed in the recipe books;
But because of the taste of the patrons,
It is always the goose that gets cooked.

We should stop referring to the practice in question here as polygamy (multiple marriages) and call what’s going on in Bountiful polygyny (multiple wives). The practice of taking multiple husbands (polyandry) is rare in human society. The concern with respect to the law is about approving or being seen to approve what is in fact an exercise of male power over women. This is, of course, further complicated in the specific Bountiful situation by the worry that this power is enhanced through the induction into the practice of polygyny of girls below the age of majority, Bountiful being a more or less closed society where this “norm” is potent.

At any rate, this is the sort of material that will be in play as the courts wrestle with this issue. They may, of course, try to duck it one way or another, but I suspect they won’t, making the progress of the reference through the courts definitely one to watch.

Full post as published by Slaw.ca on April 21, 2010 (boomark / email).