Polygamy Laws in Canada, Plus a History & Possible Loopholes

While Canada’s stance on polygamy is unequivocally prohibitive under the Criminal Code’s Section 293,¹ spirited discourse is often provoked by considering the intersection of this law with cultural practices and religious freedom. This discourse becomes more complex when you consider the historical evolution of these laws, the immigrant communities they impact, the constitutionality challenges they’ve faced, and the potential loopholes that may exist.

As we explore these complexities, one cannot help but ponder on the deeper societal implications.

Key Takeaways

• Polygamy, including forms like polyandry, polygyny, and bigamy, is illegal in Canada, and is punishable by up to five years in prison.
• The law banning polygamy, upheld in 2011, has faced challenges under the Charter but remains in place due to perceived harms caused by polygamy.
• Legal prosecution of polygamy is complex due to issues of religious freedom and the fact that only the first marriage is legally recognized.
• Historically, there has been widespread public opposition to polygamy in Canada, with 82% of Canadians opposing its legalization.

Overview of Canadian Polygamy Laws

Diving into the complexities of Canada’s polygamy laws, it becomes evident that these encompass multifaceted concepts such as bigamy, polyandry, and polygyny, each with their own unique legal and societal implications. The Canadian legal framework, as outlined in Section 293 of the Criminal Code, strictly prohibits polygamous relationships, including bigamy, which involves marrying someone while already wedded to another. Penalties for contravening these laws can be severe, with potential imprisonment of up to five years.

The Law Reform Commission of Canada defines polygamy as the maintenance of conjugal relations between more than two persons. Polygamy is the gender-neutral term for the act of maintaining multiple spouses. However, evidence suggests that within Canada, polygyny, where a man has multiple wives, is more prevalent than polyandry, where a woman has multiple husbands.

It’s critical to note that international human rights law, while not explicitly defining polygamy, places great emphasis on gender equality and freedom of religion. This focus, in turn, influences the interpretation and application of polygamy laws within Canadian jurisdiction. The overall objective of these laws is the protection of individuals from potential harms associated with polygamous unions and the preservation of societal order.

The Elements Required for Conviction

Moving from the broad prohibition of polygamy to the specifics of legal prosecution, it’s imperative to understand the elements that the Crown must establish for a successful conviction under Section 293 of the Criminal Code. These elements form the crux of any legal proceeding against those accused of engaging in polygamous relationships, setting the foundation for conviction.

To begin with, the Crown must unequivocally demonstrate that the accused was knowingly engaged in a conjugal relationship with more than one person at the same time. The law applies not just to those who are legally married to multiple people but also to those cohabitating in a marriage-like relationship with multiple partners.

Next, it must be shown that the accused entered into or continued these relationships with the knowledge that they were polygamous in nature, indicating a clear intent to contravene the law.

Lastly, the prosecution must confirm that the polygamous relationships occurred in Canada, as Section 293 of the Criminal Code only applies to offences committed within the country.

These elements constitute the basis for legal prosecution of polygamy under Canadian law, essential in ensuring the efficacy of the legal system in addressing this complex issue.

Impact on Immigrants With Polygamous Relations

In the context of Canadian law, immigrants who are legally in polygamous relationships in their home countries face significant challenges upon arriving in Canada. This is largely due to Section 293 of the Criminal Code, which forbids any form of polygamy. Consequently, immigrants involved in such relationships may face criminal prosecution, a reality that undeniably poses a significant barrier to their integration into Canadian society.

The legal constraints imposed by Canadian law have significant implications for immigrants’ familial structure. In many cases, only the first marriage is recognized under Canadian law, leaving other spouses in a precarious legal situation. This can have serious ramifications for immigration status, social benefits, and family dynamics.

These challenges are not solely legal in nature. The cultural shift required to adapt from a society where polygamy is accepted to one where it is criminalized can be a profound source of stress for such immigrants. This may manifest most acutely in the context of social integration, as these individuals may face stigmatization or discrimination due to their polygamous relationships.

History of Polygamy in Canada

The emergence of polygamy in Canada can be traced back to the late 19th century, primarily contributed to by the initial influx of Mormons from the United States. The notorious case of Warren Jeffs, a prominent polygamist figure, underscored the complexities and societal implications of the practice.

Amid these historical milestones, the tension between principles of equality and societal unease in the wake of polygamy has remained a critical aspect of the ongoing debate.

There has been discussion over the years as to whether Section 293 of the Criminal Code infringes on the right to Freedom of Religion as promised under the Canadian Charter of Rights and Freedoms, as well. It seems by and large, that yes, this provision of the Criminal Code does infringe on Freedom of Religion to some extent, but we uphold it anyway due to the greater societal good that comes from criminalizing polygamous relationships.

Early Polygamy in Canada

While polygamy has long been prohibited in Canada, the relevance of Section 293, which criminalizes the practice, has increased in recent years due to the migration of cultures and religions that tolerate some degree of polygamy. Early instances of polygamy in Canada were primarily associated with some breakaway Mormon sects, such as those residing in Bountiful, British Columbia.

Some of these sects have links to polygamous communities in the United States, such as the Fundamentalist Church of Jesus Christ of Latter-Day Saints in Eldorado, Texas.

Immigrants from parts of Africa and the Muslim world, where polygamy is culturally or religiously accepted, have also faced legal challenges in Canada.

The conflict between the law and religious or cultural practices has led to ongoing debates about the constitutionality of Section 293.

Warren Jeffs

A significant episode in Canada’s history of polygamy involves American polygamist leader Warren Jeffs, who faced serious charges connected to sexual assault and polygamous marriages. Jeffs, the self-proclaimed prophet of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, was convicted in Texas for sexually assaulting two underage girls he had taken as wives.

Remarkably, the prosecution’s case was strengthened by information shared by the Canadian Ministry of Justice. The evidence provided pertained to allegations of cross-border marriages involving underage girls from Bountiful, a religious commune in British Columbia. These girls, some as young as 12, were sent to the U.S. to marry older men, including Jeffs. This collusion highlights the international implications of polygamy and its associated harms.

Equality vs Social Unease

Inevitably, the history of polygamy in Canada is fraught with complexities, especially when examining the societal tension between principles of equality and inherent social unease surrounding the practice. This dichotomy is evident in how polygamy laws are viewed and applied, leading to various viewpoints on decriminalization and its potential consequences.

• Queen’s University law professor Beverley Baines advocates for decriminalization to focus on eradicating abuse and assisting those in need within polygamous communities.
• Daphne Bramham, an author and critic, asserts that polygamy is inherently abusive and calls for stricter enforcement of anti-polygamy laws.
• Legal tools and their effectiveness in upholding societal norms against polygamy emerge as a key concern, balancing the need for gender equality and societal apprehensions.

How Does the Concept of “Child of the Marriage” Relate to Polygamous Family Structures in Canada?

Polygamous family structures in Canada present unique challenges in applying family law principles, particularly when addressing issues like custody and support. The concept of “child of marriage” ensures that all children, regardless of the marital circumstances or parental relationships, are equally protected under the law, prioritizing their best interests in complex family dynamics.

Notable Legal Cases and Challenges

Several remarkable legal cases and challenges have emerged over the years, highlighting the complexities and controversies surrounding Canada’s polygamy laws. The most notable case out of BC involves Winston Blackmore and James Oler, leaders of a fundamentalist Mormon sect in Bountiful, British Columbia. Accused of practicing polygamy, Blackmore allegedly has 24 wives, while Oler is reported to have four.

Their trial, ongoing in the British Columbia Supreme Court, not only challenges the applicability of Section 293 of the Criminal Code but also engages with the Charter of Rights and Freedoms. Blackmore’s defence is expected to argue that the polygamy law infringes upon his religious freedom rights.

In another case, an immigrant named Mr. Ali was denied entry into Canada due to his polygamous marriage. The court ruled that his situation constituted illicit polygamous relations, reinforcing the robustness of Canada’s polygamy laws.

In 2011, a constitutional reference upheld the legality of the polygamy law, with Chief Justice Robert Bauman citing the harms caused by polygamy as justification. This case underscores the balance Canadian courts must strike between individual rights and societal harm.²

Possible Loopholes in Polygamy Laws

While Canada’s polygamy laws under Section 293 of the Criminal Code explicitly prohibit this practice, their enforcement has been sporadic and faced with legal challenges, leading to discussions about potential loopholes and their implications. These loopholes may inadvertently ease the prosecution of polygamy, introducing legal ambiguity that could potentially undermine the law’s intent.

One potential loophole lies in the law’s definition of marriage, which is traditionally understood as a union between two people. However, this definition does not explicitly preclude multiple simultaneous marriages, creating ambiguity that could be exploited.

• Only the first marriage is recognized under Canadian law when individuals enter into multiple marriages abroad. Subsequent marriages could technically be disregarded, potentially creating a loophole.
• Some argue that the law does not adequately address religious or cultural practices that may involve polygamy, leading to potential challenges under the Charter of Rights and Freedoms.
• The law’s focus on the act of entering into a polygamous marriage leaves room for ambiguity around continuous cohabitation with multiple partners, which could be interpreted as de facto polygamy.

These potential loopholes underscore the complexity involved in enforcing Canada’s polygamy laws and the need for further legislative clarity.

References

1. Criminal Code, RSC 1985, c C-46, s 293
   https://laws-lois.justice.gc.ca/eng/acts/c-46/FullText.html ↩︎
2. Reference re: Criminal Code, s 293, 2010 BCSC 517 (CanLII)
   https://canlii.ca/t/29c7k ↩︎

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