In this issue:
Polygamy; polygyny; polyandry; Criminal Code of Canada; section 293; Charter of Rights and Freedoms; section 2(a); freedom of religion; section 2(d); freedom of association; section 7; fundamental justice; overbreadth; arbitrariness; section 15; equality; section 1; justifiable in a free and democratic society; harm; Mormons; Islam
The Criminal Code prohibits both bigamy (s.290) and polygamy (s.293). Bigamy is the act of entering into a marriage when one of the spouses is already married. It focuses on the civil marriage process. The prohibition against polygamy criminalizes "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."
In the mid-1940s, Harold Blackmore settled in Bountiful, British Columbia. This was the beginning of the community of the Fundamentalist Church of Jesus Christ of Latter Day Saints ("FLDS") in that area. The FLDS, relying on historical Mormon religious teachings, practice polygamy, or more accurately, polygyny (the practice of a male having more than one female spouse).
Today, Bountiful's population is about 1,000 people, with two competing leaders.
Between 1986 and 1991, there were numerous police investigations and convictions in Bountiful for sexual assault, indecent assault and unlawful confinement. The first criminal investigation into polygamy in Bountiful occurred in 1990-1991. Before charges were approved, the Criminal Justice Branch sought opinions both within and outside the branch as to the constitutional validity of s.293 of the Criminal Code. One of the opinions was from a retired B.C. Court of Appeal judge. They were unanimous that s.293 was inconsistent with the Charter's guarantee of freedom of religion.
There were more allegations of wrongdoing in Bountiful and another opinion was sought, this time from the former Chief Justice of B.C. The conclusion was the same: that s.293 likely unjustifiably infringed s.2(a) of the Charter.
In 2005, the RCMP started an 18 month investigation into sexual exploitation in Bountiful. They recommended 12 charges against two men. A leading criminal lawyer was retained as a special prosecutor to review the proposed charges and he concluded that no charges should be approved, but noted that polygamy was at the root of the problem and believed that s.293 could be constitutionally upheld. Another leading criminal lawyer reviewed and agreed with this opinion. Both recommended a reference to the Courts to determine the constitutional validity of s.293.
A third lawyer was then retained as a special prosecutor to reconsider charge approval. He recommended proceeding and charges were laid against Winston Blackmore and James Oler. The Supreme Court of BC quashed these charges for procedural reasons, based on the fact that the prior special prosecutor had determined not to proceed with charges and that his mandate was final.
The Attorney General of BC responded with this reference. This is perhaps the only constitutional reference to a trial court in Canadian history. In it, the parties and intervenors were permitted to call evidence and witnesses, including expert testimony on the history and practices of polygamy. Chief Justice Robert Bauman, writing the reasons for judgment, summarized the evidence in great detail and his reasons extend to almost 1400 paragraphs.
Ultimately, the Court concluded that s.293 offends freedom of religion under s.2(a) of the Charter and the s.7 liberty interests of children aged 12-17 married into polygamy, but that the provision, save its application to children, is demonstrably justified in a free and democratic society. The Court's reasons rest on "a reasoned apprehesion of harm to many in our society inherent in the practice of polygamy".
It is clear that criminalizing polygamy infringes on the freedom of religion of those who wish to enter multiple conjugal unions for religious purposes or as a result of their religious belief. The most significant issue facing the Court was whether a discrete religious population practicing polygamy could be accommodated without serious harm to individuals or to Canadian society.
The Court's reasons are extensive. The numerous factual and historical findings are important to its ultimate decision to sustain the criminal prohibition against polygamy. Many, but not nearly all, of the factual findings are briefly summarized below, in part because the any appeal of this decision will be determined in the context of these findings.
The Meaning of s.293 & "Conjugal Union"
The Court reviewed the legislative history of s.293 and concluded that its purpose originally was, and still is, to "address the harms associated with polygamy; harms to women, to children, to society and, importantly, to the institution of monogamous marriage." (The harms identified by the Court are described in some detail, below).
As the natural corollary of the harms of polygamy, the Court accepted that "exclusive and enduring monogamous marriage" is the best way to ensure paternal certainty, joint parental investment in children, equality between genders and long-term support between spouses.
Despite the date on which polygamy was made criminal in Canada and the connection between the arrival of polygamous Mormons and the creation of the criminal sanctions, the Court rejected the argument that polygamy was prohibited because it was a Morman religious belief. Chief Justice Bauman instead agreed that the prohibition was motivated largely by secular concerns.
Section 293 of the Criminal Code prohibits multiple "conjugal unions". To deal with arguments that the provision is overbroad and could capture a person with multiple conjugal partners or relationships, Chief Justice Bauman held that the word "union" imports some form of marriage ceremony or sanctioning event. In this way, the provision does not prohibit promiscuity or even long term multiple sexual relationships. It is directed at the creation of multiple longer term "unions" that arise out of a ceremony or religious acknowledgment at a specific point in time. He held that "union" connotes a marital structure or institution. (However, he also held that proof of a sanctioning event is not necessary to achieve a conviction under s.293, provided there is evidence beyond a reasonable doubt of the "union".)
History of Polygamy and its Criminalization
After reviewing expert testimony, the Court concluded that polygamy was the norm throughout most of human history. This began to change in the Greco-Roman era when socially imposed universal monogamy ("SIUM") became prevalent and polygamy began to be viewed as a barbarian custom.
Christianity developed within the context of Greco-Roman SIUM and the religious and cultural principles of monogamy became intertwined, so that it is "difficult to define Christian insistance on SIUM as a specifically religious norm". There was polygamy among post-Roman expanding societies, notably among Arab and Germanic peoples. SIUM thereafter became more specifically associated with Christianity.
Polygamy became an offence in the Western legal tradition by the third century and the prohibition came to England in the later seventh century. The English Parliament declared polygamy a capital offence in 1604 and these laws were imported into the American colonies in the 17th and 18th centuries.
In 1831, Joseph Smith revealed "celestial marriage" and plural marriage was "deemed essential to celestial exhaltation" within Mormonism. Mormons defended polygamy as a positive religious command.
From 1862 through 1887, the US Congress passed 4 statutes criminalizing polygamy. The prohibition was upheld by the US Supreme Court in 1878.
Woman's suffrage was granted in Utah in 1870, well before the rest of the US. It was hoped that this would undermine polygamy. Instead, Mormon women used their votes to reinforce Mormon political power and did nothing to limit polygamy.
In 1890, the Mormon Church finally bowed to political pressure and officially disavowed polygamy as a Mormon practice. (There was, however, evidence that while the mainstream Mormon church has abandoned the practice, it remains an important part of the Mormon theological worldview among many mainstream Mormons).
The FDLS arose, believing that the teachings on plural marriage were unalterable. Current estimates are that there are 10,000 members of the FDLS. Its formal teaching is that all marriages, including plural marriages, are to be consensual.
Polygamy in Canada
Aboriginal societies in 19th century Canada had diverse marriage practices, which included polygamy. Until the 1890s, the Canadian government took few steps to address the persistence of polygamy in the Aboriginal communities. The lax approach ended with the arrival of Mormons in Canada in 1887.
In 1888, a Mormon leader went to Ottawa to petition the Canadian government to allow Mormons to bring plural wives to Canada. They were told by John A. MacDonald that they were welcome in Canada, but were not entitled to engage in polygamy here. The first criminal law against polygamy was enacted in 1890, coinciding with the Mormon church's disavowal of polygamy that same year.
There have only been two successful prosecutions under the polygamy prohibition. One resulted in the 1899 conviction of Bear's Shin Bone, a member of the Blood Indian Reserve (which did not have the intended result—in 1901, there were still 30 polygamous families on the Blood Indian Reserve). The other was in 1906 with respect to a man who had been living with a married woman "in open continuous adultery to the scandal of the public". (Note that this second conviction appears to undermine the Court's conclusion that only long term conjugal relationships that are subject to a "sanctioning event" run afoul of s.293).
Polygamy continues to be practiced in the small FLDS in Bountiful. There are also some Muslims that practice polygamy in Canada (the Qur'an allows polygamy under certain conditions), but the numbers are not known.
A pagan and Wiccan priest also gave evidence that all forms of sexuality, however expressed, are sacred and that, in the result, s.293 prevents him from acting freely in accordance with his religious beliefs.
There are also polyamorous households in Canada, which are not directly linked to any religious community.
Polygamy is Inherently Harmful
The Court accepted that polyandry (one woman, multiple men) is "exceedingly rare" and that, for all intents and purposes, the criminal prohibition on polygamy prevents polygyny. The Court further accepted that polygyny creates a wide variety of harms, both to the women and children within the polygamous family, and society as a whole. In drawing these conclusions, Chief Justice Bauman reviewed a wide range of expert evidence and literature on harm associated with polygamy in various communities around the world, and noted a "remarkable convergence of the evidence on the question of harm, from high level predictions … to the "one the ground" evidence of polygyny in contemporary North America". Some of these harms are based on the mathematical realities of men taking more than one wife within a society or community.
The list of harms the Court accepted were associated with polygyny include:
As summarized by Chief Justice Bauman:
 A great many of the foregoing effects are not limited to particular cultures or geographic locations; they are universal. Dr. McDermott's statistical analysis of polygyny reveals that throughout the world, women in polygynous societies sustain more physical and sexual abuse. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They are more likely to be subject to sex trafficking and genital mutilation. They receive less equal treatment than men and encounter more discrimination under the law.
 Girls are less likely to be educated, restricting a key factor allowing for upward mobility and economic independence. Up to half of the boys in highly polygynous societies are ejected from their communities with incalculable negative effects.
 Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice. Polygynous states spend more on defence on average, leaving fewer resources for domestic infrastructure and projects geared toward health and education.
 Moving closer to home, these harms are consistent with what clinical experts in North America have observed in their patients from polygynous backgrounds. Dr. Beall spoke of PTSD and other mental health conditions in his patients from fundamentalist Mormon communities. Dr. Stickevers' Muslim patients in polygynous relationships had higher rates of depression and anxiety and lower levels of self-esteem than her monogamously married patients. Dr. Hassouneh's Muslim patients had similar symptoms.
 The evidence of the witnesses who recounted their personal experiences living in polygynous families put a human face on many of the harms identified by the experts and in the social science literature. To be fair, some of these witnesses related positive experiences with polygyny. However, their accounts stand against the overwhelming weight of the evidence that polygyny has harmful consequences for both the individuals involved and the societies of which they are a part.
 Finally, the evidence relating to Bountiful reveals higher rates of teen pregnancy, the movement of young girls between the community and the United States for the purpose of marriage, and poorer educational outcomes.
The Court also accepted that permitting polygamy would run afoul of Canada's international treaty obligations relating to human rights.
Section 2(a) of the Charter—Freedom of Religion
While the Court rejected the argument that the purpose of s.293 is to limit religious practice, it does have that effect. With respect to members of FLDS, some Muslims and Wiccans, plural marriage is a sincerely held religious belief. Section 293 interferes with their ability to act in accordance with this belief in a non-trivial manner. As such, it breaches s.2(a) of the Charter.
Section 2(d) of the Charter—Freedom of Association
The Court did not accept that s.293 breaches freedom of association because the prohibition does not target associational conduct because of its concerted or associational nature.
Section 7 of the Charter—Liberty and Security of the Person
Because the prohibition is penal and creates the potential for imprisonment, it affects liberty and security of the person rights. Based on his conclusion that polygamy is harmful to the participants, their offspring and society generally, Chief Justice Bauman held that such rights are impacted only in accordance with the principles of fundamental justice.
Because Chief Justice Bauman interpreted s.293 in such a way that it does not apply to multiple conjugal relationships (and only "conjugal unions"), he rejected arguments that s.293 is overbroad, vague or disproportionate, with one exception. To the extent that it applies to girls under age 18 that enter polygamous marriages, he found that the provision is arbitrary and overbroad. As such, he read down the provision so that children who enter polygamous marriages cannot be criminally charged.
The Court also rejected arguments that s.293 breaches the equality guarantee on the basis of marital status (he indicates that religious discrimination is "best addressed under s.2(a)"). While there is clearly a distinction based on marital status, Chief Justice Bauman concluded that it was not discrimination in substance as the distinction does not create disadvantage by perpetrating prejudice or stereotyping. In its broader context, he held that the harm to monogamous marriage as the foundation for s.293 precludes the distinction from undermining equality rights.
Based on his acceptance of the evidence of harm caused by polygyny in Canada and elsewhere, it is not surprising that Chief Justice Bauman accepted that the breach of freedom of religion is justified. He held that the preservation of monogamous marriage, and the avoidance of the apprehended harms, was a pressing and substantial objective, rationally connected to the prohibition in s.293.
In terms of whether s.293 minimally impairs religious freedom, Chief Justice Bauman deferred to Parliament's choice of imposing criminal sanctions and again referenced the "reasoned apprehension that polygamy is inevitably associated with sundry harms" that are not "simply isolated to criminal adherents like Warren Jeffs". On this basis, he held that less sweeping means of achieving the government's objective "falls away". In other words, he concluded polygamy is so harmful, that full criminal sanction is a measured reaction and proportional to the impact on religious liberty.
For the reasons set out in the evidence and accepted by Chief Justice Bauman, polygamy, and particularly the variety of polygyny practiced in Bountiful and elsewhere by FLDS, is an objectional, and indeed offensive, institution.
In many respects, the balancing between religious freedom and the prevention of harm in this Reference harkens back to s.2(a) cases such as B(R) v. Children's Aid Society of Metropolitan Toronto, Alberta v. Hutterian Brethren (LexView 67.0), and Multani v. Commission Scolaire (LexView 57.0). In Children's Aid and Multani, the court had to weigh the potential harm of a religious practice to allowing it to continue. In Multani, the risk of allowing Sikh children to wear kirpans in school was not seen as sufficient to limit freedom of religion. In Children's Aid, the s.2(a) rights of Jehovah's Witness parents did not override the harm to their child when a blood transfusion was denied for religious reasons. The balancing undertaken in the Children's Aid case was seen as quite difficult, even when a child's life was at risk because of the importance of protecting religious belief and practice.
In Hutterian Brethren, the court refused to accommodate members of the Hutterian community who sought a religious exemption from the requirement that their driver's licenses display photographs. However, for reasons articulated in LexView 67.0, Hutterian Brethren allows public benefits to be defined too broadly, unnecessarily limiting freedom of religion In keeping with the Supreme Court of Canada's reasoning in that case, Chief Justice Bauman would not have accommodated claims from the FLDS community to a religious exemptions from anti-polygamy laws.
While this Reference shares features with these prior cases, an important aspect of it is fairly unique in Canadian constitutional jurisprudence: Chief Justice Bauman's finding that the cumulative consequences of individual and religiously motivated decisions may cause harm to society as a whole. In this respect, a specific religious practice was determined to be potentially harmful to everyone in Canada. In other words, the freedom of a small number of FLDS adherents (and some Muslims) must be sacrificed to save monogamous marriage and its benefits throughout Canada.
Measured against the the Supreme Court of Canada's decision in R v. Labaye (LexView 56.0), this creates an anomalous result. Recall in that case the criminal prohibitions on a "swinger's club" were found to be unconstitutional because the promiscuous and indecent conduct undertaken by consenting adults behind closed doors did not create a risk of harm that is "incompatible with the proper functioning of society". As noted by the Court in that case, "as members of a diverse society, we must be prepared to tolerate conduct of which we disapprove, short of conduct that can be objectively shown … to interfere with the proper functioning of society."
Individual freedom and personal liberty in Canada means that we are all free to engage in multiple and simultaneous conjugal relationships. While many would view this to be unethical and immoral behaviour, it is appropriate that the state not criminalize such individual decisions. As a result of Labaye, such conduct can be undertaken in the context of a semi-public, members-only club.
However salacious or immoral such multiple conjugal relationships may seem, Chief Justice Bauman's interpretation of s.293 precludes them from being criminal. If these relationships are formalized into long-standing and stable unions, even if based on religious motivations, they become criminal. This may be justifiable based on the societal impacts of such long term unions, but the seemingly anomalous result should be carefully considered given the potential impact on religious freedom in Canada.
Right thinking people may find it difficult to argue with the final result of this Reference. However, there are risks to religious minorities arising from the analysis undertaken by the Court that require some careful second thought. The "harm principle" seems now to be fully entrenched in Canadian constitutional law. But what truly are the risks of polygyny to individuals and society? Secondly, it is right to ask whether all of these risks should be avoided by criminal sanction.
Despite the findings of the Court, it is reasonable to conclude the s.293 directly targets a religious minority in Canada. This is for two reasons:
a. The criminal prohibition against polygamy arose immediately after the arrival of Mormons in Canada. At the time, Canadian First Nations were practicing polygamy, but this did not create any sense of need or urgency to deal with the practice. It was only after Mormons arrived and sought approval of the Canadian government that the predecessor of s.293 was enacted.
b. The Court's interpretation of s.293 requires that, to be criminal, multiple conjugal relationships must be subjected to some form of sanctioning event. Although not exclusively so, such unions would most likely arise in the context of a religious community that practices polygamy.
While the conclusion that s.293 targets a religious community does not necessarily conclude the constitutional analysis in favour of striking out the provision, it heightens the need for the government to justify its criminal prohibition on the basis of true harms caused by the practice. Otherwise, the state has an enhanced ability to single out a religious group and limit its ability to freely practice its religion.
The list of harms enumerated by the Court cannot easily be split between those affecting only individuals and those impacting more broadly on society as a whole. Some of them more directly impact on individuals within the religious communities that practice polygamy, including:
All of these are obviously bad things and should be avoided. However, with the exception of the impacts on children within polygamous families, they may be the result of adult choices. When these adult choices are the result of religious belief, they deserve deference, respect and tolerance, regardless of how strange and undesireable they seem.
Without question, there have been significant abuses of children and women within FDLS communities. There are other criminal code and statutory provisions that can deal with many of these abuses:
a) Criminal Code, s. 153—prohibits sexual exploitation;
b) Criminal Code, s. 266—prohibits assault;
c) Criminal Code, s. 271—prohibits sexual assault;
d) Criminal Code, s. 273.3—prevents removal of a child from Canada;
e) Criminal Code, s. 279(2)—prohibits forcible confinement;
f) Criminal Code, s. 279.01—criminalizes trafficking in persons;
g) Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, ss. 13 and 30—allows for removal of child in need of protection; and
h) Immigration and Refugee Protection Act, s. 118—prohibits trafficking in persons.
Criminalizing the underlying multiple conjugal union, provided that it is freely entered into by consenting adults, does not seem necessary to counter these harms, at least at first blush.
We should also be very careful about the Court opining on the merits of religious views on gender relations, regardless of how archaic and non-egalitarian they are. The charge of patriarchy can properly be made of many religious traditions. As confirmed by the Supreme Court of Canada in Syndicat Northcrest v. Amselem (LexView 65.0), the courts are not entitled to assess the validity or moral worth of religious beliefs and practices when considering freedom of religion claims under s.2(a). Some of the judicial commentary in this Reference comes uncomfortably close to doing that in the context of Mormon and FLDS beliefs.
If children in polygamous families are being harmed, there is a legitimate state protectionist role. This can in many regards be satisfied by removing children that are abused. The true question, which the Court anwered in the affirmative, is whether the polygamous family structure is inherently harmful to children. Again, caution is warranted. This is not analogous to preventing life-saving medical assistance as in the Children's Aid case. The question boils down to whether children can safely be raised in the religious community chosen by their parents.
Many religious teachings on subjects such as sexual orientation and child discipline may seem wrong and harmful to many, but we should still protect the rights of religious families to pass along such teachings. In this regard, it is not difficult to imagine the type of evidence that may be introduced to establish "emotional and behavioural" harms that some envision as a result of increasingly unpopular religious teachings passed from parents to children. All religious communities are right to be wary of the type of evidence presented and reasoning undertaken in this Reference.
There is little merit to the suggestion that allowing polygamy within a very small FLDS community will create the types of harms associated with the mathematical impossibility of widespread polygyny to the broad Canadian society. Unquestionably, if a few men in Bountiful have many wives, some men will have none. But this is not likely to create a statistically significant impact on Canada, given that the population of Bountiful is approximately 1,000.
The decriminalization of polygamy could lead to its increase, particularly through immigration from countries where it is more regularly practiced. France has permitted such immigration and the Court noted that by the 1990's more than 200,000 people were living in polygynous families, largely concentrated in enclaves and poorer suburbs of Paris. This is a large number, but there was no evidence that the practice was becoming more widespread among the broader French population such that the mathematical problems were significant for the whole country.
In any event, allowing a constititional exemption from criminal sanction for a domestic religious community would not necessarily open the door to large scale immigration of polygynous families from elsewhere. As acknowledged by the Court, Canada does not depend on criminalization to restrict such immigration as section 117(9)(c) of the Immigration and Refugee Protection Regulations, SOR/2002-227, effectively prohibits multiple spouses from being recognized within the family class, and provides that only the first marriage may potentially be recognized for immigration purposes.
Once again, this analysis does not deny or undermine some legitimate harms that arise from widespread or even localized polygyny. It does raise some concerns about whether criminalization is the best approach, instead of other regulatory means to create disincentives and prohibit immigration, while accomodating a domestic minority religious group.
Polygamy is not a good thing in our society, but the real question is whether allowing a religious exemption to the criminal prohibition would truly interfere with the proper functioning of society. The Court's reasoning in this regard is comprehensive, but not entirely satisfactory given that an exceedingly small minority would choose to practice polygamy. In this context, widespread societal harm seems implausible, except to the extent that Canada could become a haven for religious polygamous communities that are prevented from freely practicing their religion elsewhere.
As in the Children's Aid case, it is difficult to conclude that the Court's decision was wrong. However, it is right to be wary of the reasons given as they can easily be used to limit the religiously motivated practices in other minority communities that the bulk of Canadian society deems undesireable.
Based on the evidence, which will not be disputable in any appeal, polygamy causes harm. The most direct harm is to the members of the polygamous community itself. With respect to children, the harm caused is troubling; but the government should be called on to create targeted legislation to prevent the harm, and only criminalize the relationships if there is no other practical alternative.
The idea that s.293 of the Criminal Code minimally impairs s.2(a) rights under the Charter because it restricts religious practice and not religious belief is a dangerous one that can be misapplied. This is because religious practice arises directly from belief and the differentiation in protection under s.2(a) of the Charter is a false dichotomy. This does not mean that we will permit all religious practices when they cause harm to others.
We should all insist that the government truly show that a religious practice causes direct harm to children or non-adherents or truly interferes with the proper functioning of society before we concede to the legitimacy of infringing religious practice. That is the test applied by the courts to deviant sexual practices and religious practice should receive protection that is at least as vigorous.
Further, the increasinging ease with which the government is able to satisfy the "minimal impairment" component of the test for justifying a constitutional infringement is troubling. This was a major area of disagreement at the Supreme Court of Canada in Hutterian Brethren. The failure to hold the government to a strict standard of minimally impairing religious freedom in that case led to a failure to accommodate a small religious minority. This reasoning was directly imported by Chief Justice Bauman in the Reference.
Analyzed from the perspective of protection religious liberty, the question of whether we should permit polygamy in a discrete and small religious community is one on which reasonable people can disagree; regardless of how uniformly they may detest the practice. What we should all be able to agree on is that the government should be held to a high standard in justifying any infringement of s.2(a). Otherwise, we risk undermining a freedom guaranteed to all Canadians to avoid a odious practice in our midst.
It is hoped that the government's obligation to justify a s.2(a) infringement through a criminal sanction will be more stringently applied on appeal, even if the result is the same.
This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), J.D., of the British Columbia Bar.
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Copyright © 2012 Cardus & Kevin L. Boonstra
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