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By Don Hutchinson

Prior to deciding that section 293 (the polygamy section) of Canada’s Criminal Code is constitutional, Chief Justice Robert Bauman of the British Columbia Supreme Court conducted one of the most extensive reviews of the topic of polygamy that has ever been undertaken – and not just by a court. The Chief Justice heard testimony from over 20 expert witnesses and also non-expert witnesses who have experienced life in a polygamous community; reviewed over 250 books, periodicals, articles and other writings on the subject; reviewed the history of the development of laws against polygamy, beginning in the 7th century B.C.E.; and, reviewed the particular history of the development of the law against polygamy in Canada – it turns out it wasn’t just about fundamentalist Mormons. The decision in this case makes for remarkable reading and provides a wealth of reference material on the subject (not something I usually write about court decisions!).

The key paragraphs state:

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.

1343.   When one accepts that there is a reasoned apprehension that polygamy is inevitably associated with sundry harms, and that these harms are not simply isolated to criminal adherents like Warren Jeffs but inhere in the institution itself, the Amicus’ [legal ‘friend’ appointed by the court to argue the other side from that of the government] complaint that there are less sweeping means of achieving the government’s objective falls away. And it most certainly does when one considers the positive objective of the measure, the protection and preservation of monogamous marriage. For that, there can be no alternative to the outright prohibition of that which is fundamentally anathema to the institution. In the context of this objective, there is no such thing as so-called “good polygamy”.

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.

Essentially, the Chief Justice heard and read the evidence then concluded that the harm done – not just a reasoned apprehension of harm but concrete evidence of harm as supported by the testimony of witnesses and the reported research – to women, to young girls forced into polygamous marriages, to boys and young men forced out of their communities by dominant males to avoid the competition, and more – was sufficient to constitutionally justify criminalizing “poly” relationships that are outside of Parliament’s definition of marriage.

This is a well researched and well reasoned legal decision.

While we can be fairly certain that neither the Attorney General of British Columbia nor the Attorney General of Canada will want to appeal this decision, the Amicus may seek to do so. The Amicus was appointed as a “party” (the parties are normally the people directly involved in litigation) to the proceeding, which may include the right to engage the appeal process. There are also rare instances in the Canadian judicial system where interveners (those who apply and are welcomed into the case to help inform the court’s opinion but are not parties, 11 in this case) have been granted permission to seek leave to appeal when one of the parties has not done so. In 30 days, we’ll know if an appeal is being sought.

Should the unlikely scenario of an appeal lead to this case continuing to climb the legal ladder toward the Supreme Court of Canada; and should the Supreme Court of Canada disagree with Chief Justice Bauman’s decision, deciding instead to strike down or more severely limit s. 293, would it be an appropriate time for the Government of Canada to exercise s.33 of the Canadian Charter of Rights and Freedoms, the “notwithstanding clause”?

While it might seem premature or mere conjecture at this point in time, it’s a question worth considering. The notwithstanding clause was added to our Constitution to protect the right of citizens to be governed by our elected representatives in a Parliamentary democracy. The Supreme Court of Canada has the authority to interpret and assess our laws – reflecting on them within the boundaries of the Charter and our constitution – but only Parliament and our provincial legislatures have the authority to enact our laws – again, within the boundaries of the Charter and our constitution. With the mountain of evidence compiled in this case substantiating that the harms associated with polygamy, defined in s. 293 to include polygyny (many wives) and polyamory (many consenting conjugal partners), negatively impact individuals and society, it would seem reasonable that the Government of Canada not rule out use of the notwithstanding clause should the court find technical difficulty with the language of the law.

Of course, if there is no appeal of the decision the law is settled; prosecutions may proceed; and, the place of Parliament in legislating what falls criminally outside the societally accepted norms of marriage has been assessed and interpreted by the court in accordance with its role in a Parliamentary democracy.

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