To understand the moral and legal conundrum of polygamy in Canada, consider that when the Canadian Bar Association discusses the matter at its annual meeting next week, it will be part of a larger discussion about the “implications of family diversity.”
The practice of having multiple spouses – illegal for more than a century – is being considered alongside serial monogamy, surrogacy arrangements and same-sex relationships as being among those societal changes “charting new legal territory for family relationships” being examined by a panel probing what it means when the law moves into the bedrooms of the nation.
Is polygamy a religious freedom that should be allowed in a pluralistic society or is it so morally repugnant that it should remain a criminal act?
This is the question raised by the recent recommendation to test the constitutionality of Canada’s anti-polygamy law – proposed last week as a way to get at the legion of alleged wrongs in the polygamous outpost of Bountiful, B.C., but which raises an array of issues that reach far beyond the inner workings of one small community.
Bountiful was founded in the mid-1940s by the Fundamentalist Church of Jesus Christ of Latter Day Saints, Americans ex-communicated by the mainstream Mormon church who feared prosecution for their polygamous lifestyle. Because no one knows how many Canadians live in polygamous relationships, Bountiful has become the symbol for polygamy in this country.
Former church leader Warren Jeffs is facing multiple criminal charges in Arizona and Utah, including being an accomplice to incest and an accomplice to sexual conduct with a minor.
Mr. Jeffs is also accused of being an accomplice to rape for a marriage he allegedly arranged between a 14-year-old girl and her 19-year-old cousin.
In Canada, there has been a legacy of failed legal attempts to deal with the issue, utilizing either the anti-polygamy law, Section 293, which carries a five-year term, the Human Rights process, or, most recently, a section of the Criminal Code prohibiting adults from having sex with minors when the adult is in a position of authority.
After four Crown attorneys rejected a recommendation to lay criminal charges last year, saying there was not enough evidence to proceed, B.C. Attorney-General Wally Oppal assigned Vancouver lawyer Richard Peck to make an independent assessment of the Bountiful situation. In his report released last week, Mr. Peck wrote, “Polygamy itself is at the root of the problem. Polygamy is the underlying phenomenon from which all other alleged harms flow.”
He recommended that Canada’s anti-polygamy law be referred to the courts to test its constitutionality, which legal experts say would give the law – rarely used and never applied to Bountiful – real teeth.
But those who believe the issues of how to proceed on Bountiful seem clear – that polygamy is anathema; that the community is a controlling cult that violates every principle of equality and demeans women to the point of enslavement; that the sexual abuse of minors is rampant – should spend a few minutes with Vancouver family lawyer Bianca Scheirer.
Ms. Scheirer has studied the legal issues flowing out Bountiful as part of her Masters of Law. Her thesis, in part, “seeks an answer to the question of how much freedom of choice can be exercised by a woman whose religious beliefs involve a renunciation of her own choices, to abide by her husband’s rule …”
“When I first started out with this topic I had such a strong viewpoint: Let’s get rid of this. Let’s shut this down. What’s wrong with the RCMP? What’s wrong with the Attorney-General? Why don’t they take action? And having contemplated it for two years … I’m now hedging this way and that way,” Ms. Scheirer said.
“You want to respect capacitated adults’ decisions and choices about what they do in their personal relationships. You want to uphold that whole principle, but on the other hand, it’s hard to not see that community as a patriarchy writ large.”
Jason Gratl, a criminal lawyer and president of the B.C. Civil Liberties Association, said it is important to distinguish between a moral disdain of polygamist marriage and a desire for a legal recourse to crimes sheltered “by the insular community structures and bonds of loyalty.”
“It’s tempting to point at polygamy as the determining factor which creates abuse,” he said. “But one should resist that temptation in light of the fact that similar abuses occur in quite ordinary marriages. And no one is suggesting wiping out the institution of marriage because some of those marriages lead to insular family structures.”
Mr. Gratl is among those who argue that striking down the law – decriminalizing the practice – could benefit the very women the law tries to protect. “Family law structures are not equipped for dealing with the dissolution of polygamous marriages,” Mr. Gratl said.
Beverley Baines, a law professor at Queen’s University, was co-author of a report released last year that said Section 293 would likely fail a court challenge and called for polygamy to be decriminalized. (The report did not call for legalization, which she said would mean a change to the Marriage Act.)
She said if polygamy was no longer illegal, it could then be studied and really understood – not just in the context of the goings on at Bountiful, but also how common the practice may be among Canada’s many immigrants who may come from countries where polygamy is not unusual.
Nicholas Bala, who is also a law professor at Queen’s University and has written extensively about the issue, believes the law should be referred to the courts – and that it will be upheld. He said the fact that Canada’s 1892 anti-polygamy law has rarely been used does not mean it does not serve an important purpose.
“Our criminal law is related to our immigration law and our family law, and if the law is struck down we would probably have to change our immigration laws and family laws, as well,” he said. “The criminal law sends an important symbolic message. It reflects social values. And I think the vast majority of Canadians do not want to have polygamy in Canada.”
Prof. Bala said the polygamy-as-religious-freedom argument has failed in the United States, India and in Europe, but until Canadian courts rule on it, it is impossible to know where it stands. He likened it to the same-sex marriage situation: “It’s not a coincidence that we’re seeing the issue of polygamy arising now, given the fact that we have changed the traditional definition of marriage on constitutional grounds. It’s reasonable to ask should we continue to change it … I understand the logic behind it, but I don’t think it’s very persuasive.”
However, Katherine Young, a professor of religion at McGill University, believes the legalization of same-sex marriages has changed the rules.
“Once you start to change definitions there can be a whole set of repercussions,” she said. “[Now] you’re going to have to argue whether there’s any substantial reason to restrict marriage to two people. The last argument was whether we have to restrict to two people of different sex, now we have to make an argument why it should be restricted to two. And now we have even weaker grounds for doing it.”