Canada is known as a country of immigrants and prides itself on its multicultural heritage. When immigrants migrate to this country they bring with them many unique beliefs, customs and traditions. Polygamy is a custom practiced overseas, but has been outlawed in Canada since the 1800’s. The practice recently made its way into mainstream media and the courts. In addition to some immigrants who bring polygamist practices from their home countries, members of a Mormon community in British Columbia have also been featured in the media. Two of their main members have recently been charged with polygamy and other criminal offences. Coverage of immigrant cases and the British Columbia charges has created a very interesting Charter question. If polygamy is part of a particular religion, do these laws violate section 2(a) of the Charter?
Background to Polygamist Laws in Canada
Polygamy has been a criminal offence in Canada since 1892 under the Criminal Code.1 Polygamy is currently illegal under s. 293 of the Criminal Code. The law criminalizes any marital union exceeding two people, and also criminalizes celebrating or assisting these unions.2 In addition, the common law has long considered marriage “as the voluntary union… of one man and one woman to the exclusion of all others.”3 The common law definition of marriage evolved with the recognition of same-sex marriage throughout Canada.4 However, the underlying principle of marriage being a union between two people still remains and is recognized in section 2 of the Civil Marriage Act.5
Little research exists to determine the number of polygamous unions in Canada. In Ontario, polygamist marriages that are validly entered into in a person’s home country may be granted legal recognition.6 While polygamy is federally outlawed, the Ontario Family Law Act has allowed for this minor exception for immigrant families under s. 1(2).7 The province likely implemented this legislation to allow polygamous families to remain united when coming to Canada. Without this protection, only one spouse would be granted legal marriage rights upon immigration to Canada, creating a problematic family structure for individuals who have always lived this way. Some research suggests that there are a few polygamist families who have sought immigration to Ontario for this reason. Others have had to seek immigration with only one recognized spouse, because polygamous marriages are not recognized or legally protected in other provinces.8
The most renowned practicing polygamist group in Canada is a community of Fundamental Mormons residing in Bountiful, British Columbia.9 Recently, two members of this group were charged with polygamy and human trafficking of under-aged members of the religious community.10 For the polygamy charges there is a possibility that the men may make Charter claims that Canada’s polygamy laws are unconstitutional. If this happens, changes to the Civil Marriage Act and Criminal Code may also be required.
The main question arising is whether Canada’s polygamy laws violate s. 2(a) of the Charter. Under s. 2(a) individuals are guaranteed the right to freedom of religion.11 If polygamy is part of a religious tradition, it is possible for these groups to argue the Civil Marriage Act and Criminal Code are discriminatory based on their religious beliefs. Beverly Baines, a law professor at Queen’s University believes that if the issue ever reaches the Supreme Court of Canada it will be hard to uphold the current polygamy laws.12
While the men from Bountiful are also charged with child trafficking, that in and of itself does not equate to polygamy.13 The problem with the current framework is that these men are being charged, among other acts, for their family practices. If the polygamy laws were abolished, the men would still be charged with their crimes against the children in Bountiful. Baines’ main focus is on gender equality, and hopes that women in polygamous relationships will have the chance to speak out as to whether polygamy is a harmful and abusive practice.14 If the women and children in these relationships believe the practice, excluding other criminal actions, is not abusive then the government should have no right criminalizing family choices.15 After all, at one point in time it was illegal to be in a same-sex marriage, a practice that is now widely accepted worldwide.
1 Bala et al, “An International Review of Polygamy: Legal and Policy Implications for Canada” in Angela Campbell, ed, Polygamy in Canada: Legal and Social Implications for Women and Children (Ottawa: Status of Women Canada, 2005) 1 at 3.
2 Criminal Code, RSC 1985, c C-46, s 293.
3 Hyde v Hyde and Woodmansee (1866), LR 1 PD 130 at 133.
4 Bala, supra note 1 at 3.
5 Civil Marriage Act, SC 2005, c 33, s 2.
6 Bala, supra note 1 at 3.
7 Family Law Act, RSO 1990, c F3, s 1(2).
9 Jason Proctor, “B.C. polygamists, accused of taking child brides to U.S., face trial”, CBC News (21 November 2016), online: <www.cbc.ca/news/canada/british-columbia/polygamy-bountiful-oler-blackmore-1.3860888>.
10 Daphne Bramham, “Polygamist parents from Bountiful, British Columbia, go on trial for child trafficking”, National Post (22 November 2016), online: <news.nationalpost.com/news/canada/polygamist-parents-from-bountiful-british-columbia-go-on-trial-for-child-trafficking>.
11 Canadian Charter of Rights and Freedoms, s 2(a), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
12 Rachel Browne, “Feminists call for decriminalization of polygamy”, Macleans (15 August 2014), online: <www.macleans.ca/news/canada/in-wake-of-bountiful-charges-feminists-call-for-decriminalization-of-polygamy/>.