Polygamy Reference: One to Watch

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Unless the matter is for some reason withdrawn at a stage, I have little doubt that it will go all the way to the Supreme Court of Canada in due course.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.

Comments

  1. I find Justice Scalia’s dissent in Romer v. Evans interesting in addressing the first issue you raise, especially in light of Canadian developments in the same area,

    The Court’s disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis–unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals

    It remains to be explained how 501 of the Idaho Revised Statutes was not an “impermissible targeting” of polygamists, but (the much more mild) Amendment 2 is an “impermissible targeting” of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a “legitimate concern of government,” and the perceived social harm of homosexuality is not?

    …I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.
    [emphasis added]

    Is this an issue better resolved by the legislature? Or, will it more properly proceed through the courts?

    But I do agree that the far more interesting question is the second one, especially in light of the CEDAW stance on the issue, which claims that the practice violates s. 5(a) of the Convention. Supporters may have to demonstrate that assumptions made about such unions do not necessarily hold as true in Canada as in many developing nations, or that sufficient safeguards are available in Canada to provide such protection.

    UWO Law hosted a panel on the subject recently (with audio file), as did the Canadian Constitution Foundation (CCF) at their 2009 Conference.

    Towards the end of the CCF talk I raise concerns about baiting and misleading information about minority groups being used to influence public policy in the area, and arguments raised by Beverly Baines and Susan Drummond over the constitutionality of the Criminal Code provisions.

    I also agree that this is definitely one that will go right to the SCC, and will involve some interesting balancing.

  2. I think it is important to keep in mind the crucial distinction between the polygamy reference case and the recognition of same sex marriage that made its way through the courts about 6 years ago. The latter related to civil recognition of same sex marriage, the former deals with the criminalization of playing house. That is a significant difference.

    Long before same sex marriage was “legal”, one could have a ceremony with all your family and friends, call it a “wedding” and the same sex person you married a “husband” or “wife” and live together as if you were spouses. Society just wouldn’t recognize it as a marriage. What we were debating in 2003-2004 was “social recognition of same sex marriage.

    That is not the case with polygamy. Polygamy is expressly outlawed.

    So even if one makes an argument that “society” has a role to play in granting or not granting social recognition of a relationship as a “marriage” (a proposition I actually don’t agree with); the argument becomes more strained when you are essentially banning play-acting.

    I dont really see this as a case where the court will have to do a lot of “balancing”. How the court would eventually rule on whether or not society is obliged to recognize polygamous marriages I can’t predict. But in terms of the criminal prohibition I see the Charter challenge as a slam dunk–provided the court sticks to existing principles.

  3. KC,
    Need I not remind you that this is still part of the Code?

    Anal intercourse
    159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

    Apparently the homosexual act between to consenting minors is still a criminal act in Canada, liable for imprisonment for up to 10 years. The upside is that by the time they get out they could probably engage in the act without invoking the section.

    There are plenty of sections in the Code that are antiquated and obsolete, and are simply not enforced. The motivations behind this case are largely political for a number of reasons, including pressure from the U.S. due to movement of Fundamentalist Mormons from Colorado and Arizona to Bountiful.

    It’s hardly just about recognition, because the Bountiful community doesn’t seem to be terribly concerned about that at all.

    The bigger issue than all of this is the rather draconian wording of the provisions in s. 293(1)(ii) which also extends it to,

    (ii) any kind of conjugal union with more than one person at the same time,
    [emphasis added]

    As Drummond notes,

    What is “any kind” of conjugal union? On this point, the criminal law is silent. In family law, the definition of conjugal union used to include things such as the sharing of meals, sexual exchange, watching TV together (I kid you not) and the delivery of domestic services. With sexual and domestic services sitting uncomfortably with the obligations of conjugality, eating pizza with someone, while watching Sopranos reruns, could catch quite a few of us off guard.

  4. Hi. I’m with the people who don’t exist in this debate: the self-identified “polyamorists” as opposed to “polygamists”. The two words overlap in definition, but the connotations and the communities around them are very different.

    Polyamorists are the multiple-partner people who DO practice polyandry as often as polygyny. Our values and approach are completely different from those of the patriarchal polygynists.

    Our community, or at least a significant part of it, doesn’t share your confidence that we can’t (or won’t) be targeted under Section 293… nor that it’s appropriate to have even an unenforced law on the books criminalizing something that’s not harmful per se.

    We’ve formed an organization to participate in the reference because, well, Section 293 is a morally and practically wrong approach to any problems that may exist in patriarchal polygyny.

    As part of that, we’ve posted most of the players’ initial position statements on our Web site. If you want to see the affidavits, visit our blog post on the subject.

  5. I dont know where my comment from yesterday.

    I don’t agree that whether it is s. 2931(1)(i) or (ii) you are charged with it wont withstand Charter scrutiny. The s. 2 violation is pretty straightforward (as they usually are), and you need a “pressing and substantial objective”. Well the women’s equality one is probably the strongest but I don’t think it flies in light of the breadth of the prohibition. But this business you raise about the meaning of marriage being a ‘social issue’ and that society has an understanding of what ‘marriage’ is will be lightly laughed away. No way does that kind of social conservative nonsense fly with this court.

  6. Interestingly, Saskatchewan Queens Bench judges have “assisted with”, and unilaterally provided “formal, authoritive and legally binding” court decisions that forced single men to become legal conjugal spouses of women who already had existing spouses. In two seperate court cases over ten years, the men claimed they did not wish to be spouses of the women, they admitted to having lived in their homes, however because the women chose to remain legally married to their husbands, they did not consider them spouses. They claimed there was no “good will nor intent” to be spouses as evidenced by the womens refusals to get divorced from their husbands. The Saskatchewan Queens Bench justices and Saskatchewan Attorney Generals office trotted out their Family Property Act which appears to authorize courts to divide conjugal property of persons who “are subsequent spouses to persons who have existing spouses!” The Saskatchewan courts used this “federally illegal” provincial law to declare the married women to be the common law spouses of the previously single men. The men used the Constitutional Questions Act to argue they had the constitutional right to NOT become the spouses of women who had existing married spouses. The Attorney General of Canada refused to attend the cases to defend Canada’s polygamy laws. The Saskatchewan government refused in the latest case to allow the man to have paid for representation or to call intervenors to support his rights. The Attorney General of Saskatchewan, Don Morgan, had his constitutional lawyers argue that the and men women did not commit polygamy by having more than one conjugal spouse at the same time. Saskatchewan Family court Queens bench judges in the most recent case are on record as saying that four would be an appropriate number of spouses to have at the same time. It is suprising that the federal criminal code makes it illegal under s293 to assist with or sanction polygamous unions, yet the Saskatchewan judges did just that.

  7. Regan’s rant is decades out of date. The men who were ‘compelled’ to become spouses were no doubt the subject of support claims, either for the other spouse or for children. It has long been the case that one did not need to be legally married to someone to incur an obligation to support that person. Presumably the women whom these men were living with were not also living at the same time with their husbands, even though they were still married to them.

    It is no novelty that one can have support obligations to a number of people at the same time: a former wife (or husband); a current W/H; a common law spouse; and a one-night stand by whom one has had a child.

    Nothing in the law about bigamy or polygamy stands in the way of these multiple support obligations, and Regan does not explain in principle why that law should prevent support when support is due. Support does not depend on matrimony. It depends on need and a connection justifying satifying the need (in part anyway) from the person obliged to support.

  8. John,
    It is interesting you would make off the cuff comments about “rants”, when you are obviously ignorant of the facts of the statements I made.
    Perhaps don;’t attribute your statement of facts to mine.
    These cases did not involve child support claims. Neither were there “spousal” support claims” and neither were either of those matters mentioned. The case(s) in Saskatchewan involved out and out Marital FAMILY property Act. This act deals with property division between spouses. Spouse means legal partners in a conjugal union. Persons can only have ONE legal partner under marriage laws in Canada. This includes common law spouses. Anyone who assists in the creation or legitimization of “subsequent simultaneous unions” is guilty in law of polygamy. Persons who are not divorced are still married under the laws of Canada. This is Federal as is the law against polygamy. Saskatchewan sanctions persons to have additional spouses under its family law, while they are still married to others. That’s plain illegal.

  9. Regan, whatever you may think of the state of the laws, you’re muddled about them. Canada has a peculiar constitution, which gives power to the federal Parliament to make laws about “Marriage and Divorce” and about “Criminal Law”; but it gives power to the provincial legislatures to make laws about “Property and Civil Rights in the Province.” This means, essentially, that no federal law can deal with property, even the division of property between people who are married. And it means that any provincial legislature can decide however it wishes to divide property between two people who have lived together, for instance, whether or not they have been married.

    The fact that provincial laws about property use the word “spouse” doesn’t alter things. They could have called the two (or more!) people involved “quatlzes” so long as it was defined in a way that the courts could follow it.

    In that curious world constructed by our constitution there’s no illogicality in any of this.

    Your criminal law worry has to do with how narrowly or liberally courts would/should construe the prohibition on polygamy. It has nothing to do with what provincial property laws might say—the constitution forbids it, in effect.

    The net effect is that you can’t in this case “cross ruff” federal and provincial laws this way to make an argument that a judge would buy.