24 November 2011

Supreme Court Releases Decision in Polygamy Reference

On 24 November 2011, the Chief Justice of the Supreme Court of British Columbia released his decision in Reference re: Section 293 of the Criminal Code of Canada, otherwise known as the Polygamy Reference. The British Columbia Attorney General asked the court to declare whether the prohibition on polygamy under s. 293 of the Criminal Code was consistent with the basic freedoms guaranteed by the Charter of Rights and Freedoms.

The decision is a masterwork of legal analysis and I won't offer it the indignity of a synopsis. Suffice it to say that the government won.

On the main question, the constitutionality of s. 293, the Chief held that:
"[1359] For the reasons I have given, s. 293 is consistent with the Canadian Charter of Rights and Freedoms except to the extent that it includes within its terms, children between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time.

"[1360] For greater clarity, as I have indicated in my reasons, the inconsistency does not extend to persons who marry into polygamy before the age of 18 but are 18 years of age or older at the time of the laying of the Information in respect of conduct that occurred at or after 18 years of age."
To cure this minor defect, the Chief elected to limit the meaning of s. 293 to exclude its application to minors between 12 and 17 years of age:
"[1362] ... I would read down 'every one' in s. 293 to exclude the noted group of potential accused persons."
The Chief distilled the evidence presented and reasons for his conclusion in the introduction to his judgment:
"[5] I have concluded that this case is essentially about harm; more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.

"[6] Based on the most comprehensive judicial record on the subject ever produced, I have concluded that the Attorneys General and their allied Interested Persons have demonstrated a very strong basis for a reasoned apprehension of harm to many in our society inherent in the practice of polygamy as I have defined it in these reasons.

"[7] I turn to some of the harms that are reasonably apprehended to arise.

"[8] Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygamous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They tend to have less autonomy, and report higher rates of marital dissatisfaction and lower levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient.

"[9] Children in polygamous families face higher infant mortality, even controlling for economic status and other relevant variables. They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygamous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security. Children are also at enhanced risk of psychological and physical abuse and neglect.

"[10] Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls, and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of various problems for both mother and child.

"[11] The sex ratio imbalance inherent in polygamy means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives. These young men and boys often receive limited education as a result and must navigate their way outside their communities with few life skills and social support.

"[12] Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes.

"[13] Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.

"[14] Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists."
On the secondary question, the Attorney General's request for the court to determine the elements of the conduct s. 293 seeks to prohibit, the Chief held that:
"[1363] ... [T]he elements of the polygamy offence (s. 293(1)(a)(i)) and those of the conjugal union offence (s. 293(1)(a)(ii)) are the same:
  1. an identified person, who
  2. with the intent to do so,
  3. practices, enters into, or in any manner agrees or consents to practice or enter into,
  4. a marriage, whether or not it is by law recognized as a binding form of marriage, with more than one person at the same time.
"[1364] Section 293 does not 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."
This should be of assistance in any future attempt to prosecute a charge of polygamy.

This decision also offers helpful definitions of legal terminology in relation to marriage which I suspect will be of interest to readers of this blog, in particular the anonymous commentator who believes that British Columbia's legislation sanctions polygamy by allowing married persons who are not yet divorced to enter into unmarried common-law "spousal" relationships (see the comments to this post for further discussion of this point):
"[135] Polygamy is an umbrella term that refers to the state of having more than one spouse at the same time. It includes both polygyny and polyandry. Polygyny is the practice of a male having multiple female spouses. Polyandry is the converse, a female with multiple male spouses. ...

"[138] Polyamory is subject to varied definitions but refers generally to consensual relationships in which participants have more than one partner. ...

"[139] Bigamy is the act of entering into a marriage when one of the spouses is already married. It is criminalized by s. 290 of the Criminal Code:
290. (1) Every one commits bigamy who
(a) in Canada,
(i) being married, goes through a form of marriage with another person,

(ii) knowing that another person is married, goes through a form of marriage with that person, or

(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or
(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein.
"[140] 'Form of marriage' is defined in s. 214:
“form of marriage” includes a ceremony of marriage that is recognized as valid
(a) by the law of the place where it was celebrated, or

(b) by the law of the place where an accused is tried, notwithstanding that it is not recognized as valid by the law of the place where it was celebrated;
"[141] Bigamy is an indictable offence, and offenders are liable to imprisonment for a term not exceeding five years (s. 291).

"[142] The offence of bigamy focuses on attempts to enter into multiple marriages by means of the civil marriage process. Its commission involves perpetuating a fraud against the state in that the state’s marriage requirements are employed for a marriage that is a nullity. As the Law Reform Commission of Canada observed in Bigamy, Working Paper 42 ... at 11:
This is why the prohibition of bigamy seems justified, since by assuming all the ritual and official characteristics of marriage, such conduct destroys the meaning of the institution itself. Aside from its duplicity, a bigamous marriage is a valid marriage in all respects: this is what makes it a real threat to the institution.
"[143] Bigamy frequently also involves a deception against one of the individuals involved.
"[144] In Canada, bigamy is distinguished from polygamy by the requirement of multiple state sanctioned marriages. Individuals who enter into multiple marriages but do not attempt to do so through the civil marriage process are not captured by the bigamy offence."


  1. The polygamists who get charged will say this is religious persecution and they will win that eventual court argument because of the judges clear inference that married persons can have common law spouses without being polygamists.
    He says persons cannot have a "religious or ceremonial incident" simultaneous to their existing civil marriage.(even though ceremonial taking of an additional spouse is the equivalent to a common law marriage in its effects on women and children). Future court cases will determine that this is surely unjustified religious discrimination because it is only this incident of "religious ceremony" that separates the reality of having multiple spouses. The provincially provided "consent to marital rights, obligations and contract (in BC Family law Act)for married persons to have simultaneous spouses UNLESS there was a ceremony is for certain discrimination on the basis of religion. s.290 deals with Bigamy and multiple civil marriages. s.293 deals with loopholes where persons claim authority to create marital type relations with more than one person at a time. The Supreme Court of Canada will not fail to identify this obvious religious or "ceremonial discrimination" when it comes up there. The judge conveniently forgot to mention "contract and consent" provision of s.293.

  2. I wonder what is meant by "This decision also offers helpful definitions of legal terminology in relation to marriage which I suspect will be of interest to readers of this blog, in particular the anonymous commentator who believes that British Columbia's legislation sanctions polygamy by allowing married persons who are not yet divorced to enter into unmarried common-law "spousal" relationships:

    "[135] Polygamy is an umbrella term that refers to the state of having more than one spouse at the same time."

    Does BC's new Family Law Act allow the state of having more than one spouse at the same time?

  3. And again I am reminded of the perils of overly summary summaries.

    The discussion of the meaning of polygamy runs from paragraphs 852 to 1042 of the judgment, and the court concludes that the "polygamy" caught by the Criminal Code is "practicing or entering into a 'marriage' with more than one person at the same time, whether sanctioned by civil, religious or other means, and whether or not it is by law recognized as a binding form of marriage." In other words a form of marriage ceremony is required and the relationships must be simultaneous.

    Since 1972, the legislation on domestic relations in British Columbia law has created a statutory definition of "spouse" which included married spouses as well as persons cohabiting together for more than two years. The purpose of this definition was to allow unmarried spouses to claim spousal support as well as child support for children brought into the relationship. This species of statutory spouse requires no marriage ceremony, and by including unmarried persons within the definition of "spouse" doesn't make them married.

    As I understand the exposition given in the Reference decision, the "spouses" involved in a polygamous relationship are all in the relationship simultaneously and have all gone through a form of marriage ceremony.

  4. Thank-you very much for your understanding of the reference decision! The Supreme Court of Canada may rethink Justice Baumans' logic and historical interpretations of s.293 and also articulate that s.293 is supposed to plug loopholes in s.290 whereupon an individual attempts to create multiple binding marital rights and obligations under the guise of "any kind of marriage" with more than one person, whether they reside together or not. The reality is that s.290 (bigamy) deals with multiple civil marriages; whether they are religious or non-religious marriages, participants must all follow the boundaries of the Marriage Act including not having an existing marriage. In Tolhurst, the point Chief Justice Bauman misses is that the couple did not seek nor claim to have conjugal rights with each other, nor seek family law, provincial nor religious sanctioning of conjugal rights. In Tolhurst, the judgement identified the couple as adulterers only. The judgement did not identify the adulterers as "spouses" in any manner, nor could the government force them to be "spouses with conjugal rights" nor "spouses of a person who has a spouse". To do so would guarantee they themselves ran afoul of s.293 legislation for "providing consent, sanctioning a consent or providing a binding conjugal contract" of prescribing multiple conjugal rights under the guise of marriage. It is only the completion of divorce that enables a civilly married person to take another spouse. That is an implied conjugal right.
    s.293 mentions "relationship" twice and union once. It clearly remains to be seen whether a higher court agrees with Justice Baumans' 19th century reading of "conjugal union" vs. "conjugal relationship" which is so pivotal to his conclusions and interpretations in current provincial Family Law legislation. Certain USA states clearly consider common law marriage a conjugal union unlike Justice Bauman.
    s.293 has a big heading where is defines the act as relating to "offenses against conjugal rights". Oddly, Justice Bauman does not speak to this heading in a meaningful manner if at all. To do so could undermine his conclusions with respect to the historical intent of the legislation. Conjugal rights include marital property splits. Family law acts deal ONLY with property within conjugal rights. Personal property rights are dealt with in private law. (Not family law courts).
    Saskatchewan's Family Property Act (and possibly BC's Family Law Act) uses binding authority in litigation between spouses. Wording is contained in the forms that legally restricts spouses from entering into a civil marriage until property is split and the court action is concluded with final judgement. (An exclusive conjugal right and protection) At the same time the legislation allows, permits and sanctions the entering into multiple conjugal property rights "simultaneous" to an existing civil marriage if the participants are "common law spouses". One can ONLY assume the logic behind restricting the common law spouses from entering into a civil marriage with another is that they are in a "conjugal union".

  5. Further, s.293 has another heading that describes the s.293 offence as "an offence against a person and reputation". Undoubtedly, the intent included protection to BOTH parties to an existing conjugal union inclusive of the conjugal right to reconcile separation without remarriage. Additionally, the conjugal right for protection from infringement upon their "exclusive" marital status. If one or both of the spouses is simultaneously authorized to become yet another persons' spouse under the BC Family Law Act, this offends the conjugal reputation of spouses.
    There is a very simple answer to this matter. BC and Saskatchewan need to modify their family law acts to state that the countdown in time of 24 months (common law marriage) for conjugal rights of property BEGINS when both cohabits are eligible for marriage and conjugal rights. This includes receiving a divorce if married to another. This simple answer serves to:
    1) allow cohabiters the constitutional and conjugal right to have a spouse that is not the spouse of another. Also, allows participants to KNOW when their "conjugal" countdown starts. Even the Amicus (a learned lawyer) interpreted polygamy to include common law marriages if they purport to confer multiple conjugal types of rights and obligations and regardless of whether the "spouses" cohabited under the same roof. How is a BC citizen to know anything different? BC's family law act by definition confers and adjudicates only conjugal rights and obligations with respect to property. ( As opposed to private law)
    2) Appeases most polyamorists by allowing them to do whatever they wish, short of purporting to authorize or confer BINDING conjugal status involving more than one person within the same time period. If they want property rights, get a lawyer to make a binding private law legal contract.
    3) Allows participatory polygamists and certain polyamorists to be prosecuted because they purport to sanction more than one current set of binding conjugal rights and obligations (regardless of whether a ceremony, sealing, or a cupcake festival was held) under the "guise of binding marital conjugality", If the polyamorists and polygamists do not purport their ceremonies to be binding upon participants then there is no illegal act.
    4) Allows prosecution of any participatory provincial family law justices that have or intend to confer binding multiple conjugal rights and obligations upon individuals, where one or more of them were already bound in either a civil marriage or conjugal rights under the guise of marriage (common law marriage).
    5) Sets the record straight and induces federal and provincial legislators to clean up their acts (family law) so that they are not in obvious conflict with the Criminal Code of Canada s.293.
    PS. A binding conjugal ceremony differs little from a binding civil/provincial conjugal “consent”, “sanction” or “contract” contained in s.293. They both confer authoritative conjugal rights and protection under the guise of marriage. Justice Bauman "forgot" to underline "be party to consent", " party to a sanction" and " party to a contract" when he highlighted his opinion on s.293.
    Perhaps he was anticipating the New BC Family Law Act? There is a reason participants in common law marriages are called unmarried spouses. It is because they are both otherwise single and eligible to marry (as in not married to another

  6. JPB, what are your thoughts on the above two statements? Is there an 800 pound gorilla waiting to tear down Canada's "marriage" law and "divorce" law, when a provincial Queens Bench Justice can declare a civilly married person to be the spouse of another person at the same time (without \the consent of the "subsequent" spouse?)they are in a legally valid civil marriage with another?

  7. I may not fully appreciate the nuances of your argument, but people who are married and separated have been able to form new relationships which meet a legislated definition of "spouse" for the last thirty years of so without there being much of a problem. The differences between this and the behaviour which has been criminalized are that: the relationships are sequential (the spouse has left the marriage before joining the new relationship), the relationships are not simultaneously cohabiting (the legal spouses are not living with the statutory spouse), and persons who are spouses as the result of a statutory definition do not go through a "form of marriage" with each other (there's no rite which purports to solemnize their union). As a result, I'm not terribly worried.

  8. Maybe this is what the last person posting was getting at:

    I assume you can "get around" the polygamy restriction by just not going through a "form of marriage" (after the first one).

    In other words, just do the first marriage legally, then begin shacking up in other simultaneous marriage-like relationships without any ceremony. Assuming you have all the normal indicia of marriage-like relationships, the Court would (presumably) consider all your subsequent partners to be your spouses. It would be perverse if the Court found that all the partners after the first one in this scenario weren't living in "marriage-like" relationships, on account of them being "polygam-like", since the Court would then be denying the protections of the FRA (or soon, the FLA) to the second, third, etc. partners.

    So, amazingly, maybe the folks in Bountiful CAN have multiple spouses, as long as they just shack up and don't ask either their God or their government to sanction the relationships.

    I imagine, though, that this scheme would not satisfy those most likely to want to practice polygamy, since their urges are likely bound up with both social and religious customs that require someone's God or government to give its blessing.

  9. I agree with your point here, it's sort of what I was saying about the distinction between someone who is a spouse by virtue of the definition in a statute and a spouse who is wed with the ring, the ceremony and the bad cake.

    You're right that there's nothing in principle stopping a fellow with a statutory spouse from shaking up simultaneously with the married spouse, and you're right that all three would be considered "spouses" for the purposes of things like spousal support and estate entitlements.

  10. "the spouse has left the marriage before joining the new relationship"

    Are you saying that separated couples are now divorced? Obviously that ain't so. They are still bound by legal marital rights and obligations until the moment of divorce.

    "the relationships are not simultaneously cohabiting (the legal spouses are not living with the statutory spouse)"

    The new BC family law legislation states three times that all spouses may cohabit under the same roof.

    "and persons who are spouses as the result of a statutory definition do not go through a "form of marriage" with each other (there's no rite which purports to solemnize their union). As a result, I'm not terribly worried."

    Actually, the "consent and contract" to the simultaneous spousal "status" is sanctioned by the BC Family Relations Act, when the "spouses" go to Family Law court and are recognized by a person (justice)as having multiple spouses covering the same time period. Justice Bauman conveniently glossed over the "provide consent or contract" provisions of s.293.

    "all three would be considered "spouses" for the purposes of things like spousal support and estate entitlements. "

    Not so. They are not "considered" they are in fact sanctioned and recognized as spouses with the binding authority of the government. The "new spouse(s) do not have the right to not become the spouse of a person who has a spouse. In addition, in Saskatchewan for example common law spouses are treated IDENTICALLY to civil marriage spouses and that includes equal division of the "matrimonial home". Also, when in litigation before a family law court justice, common law spouses are not free to remarry UNTIL the proceedings are completed. But they can create IDENTICAL marital rights and obligations with another even without the subsequent marital rights partner(s) consent. Oddly,one or both can also be civilly married to another(s) at that time.

  11. I think you have misunderstood what I have said in a number of respects, but I'm not particularly interested in engaging in a debate on this issue. Please feel free to provide additional comments as they come to you; thank you for your important contributions to this discussion.

  12. To the poster who commented "I assume you can "get around" the polygamy restriction by just not going through a "form of marriage" (after the first one).
    Yep. What certain muslims and polygamists in BC can do is have a ceremony now that " future binds them after 24 months of cohabitation" and "within the authority of the new BC Family Relations Act."
    This ceremony is then not "instantly" binding and escapes Justice Baumans' criteria of polygamy. It is also what the BC government expressly permits and authorizes in its new family relations act. It has the effect of allowing multiple spouses but adds the official sanctioning power of the BC government. Also, for each existing spouse, the polygamist needs to write them a letter or verbalize(according to the new BC Family Relations Act)that they intend to seperate permanently from their previous spouse(s). After 24 months of cohabitation, they then have legally recognized spousal status with each spouse and cannot be prosecuted for polygamy because no "ceremony" was held that instantly binds them "in a moment". (Justice Baumans' decision)

  13. hello can you plwase tell me.
    What is a Canadian women marries a man from another country - got married in his country(8 yrs ago). The woman has always lived in Canada, and the husband came a year after Can citizen a couple of years ago. The husband now wants to divorce( uncontested) and marry someone from his home country and still live in Canada . Wife stays in his home country for a few years until money is saved.. The original couple are staying living in the same house for financial reasons( no kids) for maybe a couple of years to save money and all financial, benefits and living arrangements are separate.
    His status would be married , hers would be divorced ( ie for income tax status)

    Are there any issues with that.? Incidently his home country allows 2 wifes but he will be divorced from 1st wife in Canada .
    can you see any legal problems with that?

    1. When a married couple are divorced, they are both divorced from each other and both are free to marry.