JURIST Guest Columnist Nicholas Bala of Queen’s University Faculty of Law says the recent ruling in British Columbia holding that Canada’s criminal prohibition of polygamy is constitutionally justified despite violating the guarantee of freedom of religion is strong and should prevent the spread of polygamy in Canada…

The recent ruling of Chief Justice Robert Bauman of the Supreme Court of British Columbia in the Polygamy Reference offers the world’s most comprehensive judicial treatment to date of the legal status of polygamy. Bauman concluded that Canada’s criminal prohibition on polygamy is a violation of the guarantee of freedom of religion in the Canadian Charter of Rights and Freedoms, but accepted that this is constitutionally justified as a reasonable limitation intended to prevent harm to women, children and society. This is a welcome ruling that, if upheld, should prevent the spread of polygamy in Canada. The decision is significant not only with regard to polygamy, but also for the way that it addresses issues related to the scope of religious freedom and the definition of familial relationships, most notably same-sex marriage. A major bonus for scholars interested in polygamy is that all the extensive expert reports, articles and affidavits filed in the case, as well as significant portions of the transcripts, have been made available online.

Canada’s Evolving Definition of the Family

Over the past half century, Canadian courts and legislatures have developed a broad and functional approach to the recognition of familial relationships. Canada gives significant legal rights and responsibilities to an adult who has established a parent-like relationship with a child, most typically the partner of a biological parent. Canada was also one of the first countries to grant a wide range of rights and obligations to unmarried opposite-sex cohabitants.

More recently and most contentiously, Canada was one of the first countries to recognize same-sex marriage. This process involved a number of appellate decisions, such as the 2003 Court of Appeal for Ontario judgment in Halpern v. Canada, which held that it was a discriminatory violation of the Charter to fail to allow two persons of the same sex to marry each other. Crucial to these rulings was judicial acceptance of the fact that children are not harmed by being raised by same-sex partners and the conclusion that recognizing same-sex marriage would promote the interests of children being raised in these relationships. Recognizing same-sex relationships did not have societal costs, but on the contrary led to social savings, as individuals in these relationships can look to their partners rather than the state for support. This litigation resulted in Parliament enacting the Civil Marriage Act, defining lawful marriage as the “lawful union of two persons to the exclusion of all others.” Although politically controversial, public opinion polls at the time showed that a clear majority of Canadians supported the enactment of this legislation, revealing public acceptance that recognition of same-sex marriage was needed to ensure equality for homosexuals.

Polygamy in Canada and the Reference Case

Since 1890, Canada’s criminal law has prohibited polygamous marriage or living in a “polygamous union,” and immigration laws prohibit settlement in Canada of polygamous families. Despite these laws, about 1,000 polygamous fundamentalist Mormons live in the area of Bountiful, British Columbia. There are also a small number of polygamous families who have immigrated to Canada from countries in Asia and Africa where the practice is legal, misrepresenting their familial relationships in order to enter the country. Additionally, a small number of Muslims have had polygamous religious ceremonies performed by Islamic imams in Canada.

Over the years there were reports from Bountiful of the coerced polygamous marriage of women, including adolescents trafficked into Canada from fundamentalist Mormon communities in the US for this purpose. There were, however, no prosecutions for polygamy in Canada in over 70 years, partly because of difficulty in obtaining evidence about practices in the isolated, secretive community of Bountiful and, more recently, due to questions about the constitutionality of the law in light of the introduction of the Charter of Rights in 1982.

Around the time that same-sex marriage was introduced in Canada in 2005, there was a split in the Bountiful community, with one group beginning to seek media attention and advocate for the legal recognition of polygamy, adopting some of the rhetoric of gay activists about the need for respect for the choice of their “lifestyle,” as well as making arguments based on religious freedom. In the face of growing media attention and public concern, and in response to complaints from women who had fled polygamous marriages, polygamy charges were laid against the two most prominent men in Bountiful in 2008, each of whom was alleged to have multiple wives. These charges were dismissed on procedural grounds. Although polygamy charges could have been brought again, the British Columbia government decided to refer the questions of the constitutionality and proper interpretation of the polygamy law to the province’s Supreme Court, the highest level of trial court. The reference process in Canada allows governments to seek the opinions of the courts about legal issues; although technically only advisory, these opinions are regarded as highly persuasive.

The reference process stretched over two years, with the governments of Canada and British Columbia defending the law’s constitutionality and a court-appointed amicus curiae challenging it. There were 17 intervenors representing a range of religious, civil liberties and advocacy groups, as well as one of the men previously charged. Much of the evidence was submitted by way of affidavits and written expert reports. In hearings held over four months, a few of the experts were cross-examined, and testimony and video-recorded statements were received by court from present and former members of the Bountiful community about their experiences with polygamy, with these community members remaining anonymous.

Bauman’s 300-plus-page ruling extensively reviews the evidence and submissions about the history and nature of marriage, both monogamous and polygamous, as well as jurisprudence from a number of countries and international law. While the expert witnesses and community members were not unanimous, the weight of evidence clearly supported the view that polygamy, or more accurately polygyny (one man having two or more wives), results in physical and psychological harm to women and is inherently unequal. There are some women who voluntarily choose to enter polygamous marriages and are satisfied in these relationships. However, many women enter in polygamous marriages only due to coercion, but once married, feel great pressure to stay with the father of their children. Women in polygamous marriages often suffer from competition with their “sister wives,” and compared to women in monogamous marriages, suffer from relatively high rates of abuse, depression and poverty.

Further, research from many countries establishes that polygamy endangers children, both female and male. A significant portion of Bauman’s judgment addresses the negative effects of polygyny on children and society. Beyond the abuse and exploitation of adolescent females, polygamy inevitably results in the expulsion of many of adolescent and young adult males from their families and community — the “lost boys” of Bountiful and fundamentalist Mormon communities in the US. There are widespread negative economic and social effects to polygyny in societies where the practice is common.

The court accepted that the prohibition on polygamy is a restriction on freedom of religion, which is protected under § 2(a) of the Charter, in particular the religious freedom of fundamentalist Mormons, many of which believe that polygyny is divinely sanctioned, and of Muslims, many of whom regard it as a religiously acceptable form of marriage. Bauman, however, concluded that the law is constitutionally valid, invoking § 1 of the Charter, which allows courts to uphold laws which restrict constitutional rights if the state satisfies the onus of establishing that the law is “demonstrably justified in a free and democratic society.”

In applying the § 1 test, Bauman concluded that “the salutary effects of the prohibition far outweigh the deleterious.” He further observed: “The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times. It seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy.” This decision is one of a number of recent Canadian cases where courts have struggled with the scope of freedom of religion. Bauman’s decision in the Polygamy Reference relied heavily on the 2009 Supreme Court of Canada judgment in Hutterian Brethren, which emphasized that freedom of religion is not absolute. In that case, Chief Justice Beverley McLachlin wrote that “the real issue is whether the impact of the rights infringement is disproportionate to the likely benefits of the impugned law.”

In his decision, Bauman also considered the validity of the polygamy prohibition in the context of Canada’s recognition of same-sex marriage. He rejected the “alarmist view … that recognition of the legitimacy of same-sex marriage will lead to the legitimization of polygamy,” noting that polygamy is a practice “inevitably associated with serious harms.” While recognition of same-sex marriage promotes equality, polygyny promotes inequality.

Although upholding the validity of the law, Bauman concluded that it is not constitutionally permissible to prosecute a person (inevitably a woman) who entered a polygamous marriage while a minor. He also held that the criminal prohibition applies only to those who go through some form of polygamous ceremony or undertake a marital commitment, precluding the prosecution of polyamorists who chose to live together in intimate adult relationships of three of more but without formal marital commitments.

Commentary and Future Developments

Although widely praised by editorialists and politicians as reflective of Canadian values and consistent with the views of the vast majority of Canadians, the decision in the Polygamy Reference has been criticized by some academic commentators and a few columnists as disregarding religious freedom and inappropriately valorizing monogamy. Some commentators argue that respect for multiculturalism requires allowing immigration by polygamist families from countries where this practice is legal. However, it is notable that a number of Western European countries which had open immigration policies for polygamist families for a period of time changed these policies after it became clear that there are serious social problems associated with this family structure. These countries are now struggling to deal with the problems of significant polygamous populations while preventing more of this type of immigration. Canada’s criminal prohibition on polygamy is an important anchor for the restrictions on immigration by polygamous families.

Bauman’s decision is highly likely to be appealed, and the issue of the constitutionality and interpretation of the polygamy law is likely to be ultimately decided by the Supreme Court of Canada. Until the legal issues are resolved, there will be an understandable reluctance to commence prosecutions. If the law is upheld, there should be prosecutions, albeit selective ones. Polygamy is not a “victimless crime.” Evidence in the Polygamy Reference revealed that there are fundamentalist Mormon men in Canada who coerced younger women and adolescent females into polygamous marriages, and prosecutions are especially warranted in such cases. There is, however, also a critical need for culturally sensitive services to support women, children and young men who want to leave polygamous families and communities. Further, the family courts should afford women leaving these relationships the same relief as would be afforded an unmarried cohabitant, such as child support and property remedies based on constructive trust.

Nicholas Bala is a Professor of Law at Queen’s University in Kingston, Ontario. He is one of Canada’s leading scholars of family and children’s law, and he submitted an expert witness report in the Polygamy Reference on behalf of one of the intervenors, Stop Polygamy in Canada. In it, he provided an extensive review of literature and law on polygamy, and argued in favor of the constitutional validity of the present law.

Suggested citation: Nicholas Bala, Polygamy in Canada: Justifiably Not Tolerated, JURIST – Forum, Dec. 3, 2011, http://jurist.org/forum/2011/12/nicholas-bala-canada-polygamy.php.