04 December 2011
The Supreme Court of British Columbia (pictured) has passed a landmark ruling on polygamy that clarifies certain limitations on religious freedom in Canadian constitutional law.
Chief Justice Robert Bauman of the Supreme Court of British Columbia concluded that Canada's criminal prohibition on polygamy is indeed a violation of the guarantee of freedom of religion in the Canadian Charter of Rights and Freedoms. However, this violation of religious freedom is constitutionally justified as a reasonable limitation intended to prevent harm to women, children and society.
Justice Bauman's decision is likely to be appealed and could still ultimately be overturned by Canada's Supreme Court. The main opponents and targets of Justice Bauman's decision are Canada's Mormon population.
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 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 Muslim imams in Canada.
The issue was largely ignored until same-sex marriage was introduced in Canada in 2005. Some Mormons began 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 Mormon men in in 2008, each of whom was alleged to have multiple wives.
Ultimately, the government of British Columbia 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 process stretched over two years, with 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 Mormon 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.
The report argues that 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.
The report argues that 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, particularly within the Mormon community.
The court admits that the prohibition on polygamy is a restriction on freedom of religion, which is protected under Â§2(a) of the Charter, in particular the religious freedom of fundamentalist Mormons, many of which believe that polygyny is divinely sanctioned, and to a lesser extent of Muslims, who merely regard it as as a religiously acceptable form of marriage.
Bauman, however, concluded that the law is constitutionally valid, invoking Â§ 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 Â§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, he argues, 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.
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 viewed as normal.
Another problem with the decision is it blurs the distinction between licensed state marriages and informal common-law marriages.
When same-sex marriage was before Parliament and the courts, the only legal question was whether gay couples could get licences and have officially sanctioned ceremonies. Same-sex couples could already live common-law, without fear of prosecution, and were already entitled to some associated benefits.
Now, since the polygamous marriages under scrutiny in the decision were never registered, Bauman's decision makes it up to the courts to decide whether or not an unregistered co-habitation of one man and more than one woman should be deemed a criminal polygamous marriage. This confuses the definition of marriage for legal purposes, leaving it to the discretion of the judge.
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.
Nicholas Bala, "Polygamy in Canada: Justifiably not Tolerated" The Jurist
December 3, 2011
Kate Heartfield, "Polygamy ruling muddies marriage law" Edmonton Journal
December 3, 2011