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Laws governing polygamy in
Canada and other countries

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Disclaimer:

The following essay is for general information only. Do not use it to make any personal decisions without first consulting a lawyer knowledgeable about family law in your country.

Canada:

The Criminal Code of Canada is in force in every province and territory in Canada.

Right after Section 289 "venereal diseases," -- now called STDs and STIs -- which has been repealed, comes a series of "Offences Against Conjugal Rights." Section 290 discusses bigamy. Section 293 covers polygamy. The latter states:

  1. Every one who:
    (a) practises or enters into or in any manner agrees or consents to practise or enter into
    (i) any form of polygamy, or
    (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or

    (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
  2. Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse. 1

Section 293 was added to the Criminal Code in the late 19th century, allegedly to keep Mormons out of Canada. No charges have been laid under this law since the late 1940s. 5

It is unclear to us, from a literal interpretation of the section 289, how it would differentiate among:

bulletOne man and two or more women participating in a marriage-like commitment ceremony.

bulletFive adults engaging in a ritual to sign an agreement to create an intentional community.

bullet A group of university students of both genders signing a joint lease on a house in a student ghetto, in the expectation that some relationships may well develop among the group.

bulletA man who is married to one woman and has carried on a long-term adulterous relationship with another.

Polygamy has been openly practiced in British Columbia (BC) for many decades by members of the Fundamentalist Church of Jesus Christ of Later Day Saints (FLDS).

It is less openly practiced by a minority of Muslim families scattered across Canada. In 2008-MAY, Toronto imam, Aly Hindy, told the Toronto Star that he had officiated at or "blessed" more than 30 polygamous marriages over the past five years. 3

Brian Hutchinson of the National Post newspaper commented on Section 293:

"... some legal scholars say it is unfair, illogical and anachronistic."

"Written in 1892, Section 293 prohibits individuals from entering into a 'conjugal' relationship with more than one person at a time. This applies formal marriages as well as common-law relationships, but not to adulterous ones."

"In other words, it's a crime to have more than one 'spouse,' as loosely as that term is now defined, but it's not a crime to have intimate relationships with more than one partner, simultaneously. Still, there is no popular movement afoot to strike or alter the existing law."

"Until recently, there's been little desire to apply it. For years, legal experts and special prosecutors have advised B.C. attorneys-general not to lay polygamy charges in Bountiful, on grounds that Section 293 would not survive a constitutional challenge. The Canadian Charter of Rights and Freedoms guarantees religious freedom, within reason. It has been the opinion of many scholars that polygamy, as it has been practiced for decades by Fundamentalist Church of Jesus Christ of Latter Day Saints members in Bountiful, would survive the legal test of reasonable religious practice." 4

If Section 293 were declared unconstitutional because it unduly restricts religious practice, there is a good chance that the federal government might invoke the "not-withstanding" clause to re-criminalize polygamy.

This clause, to our knowledge, is unique in the world. It enables the federal government or a province to pass legislation that knowingly violates the Canadian Charter of Rights and Freedoms -- Canada's constitution, as long as the bill states that it is in direct conflict with the Charter, and as long as a new not-withstanding bill is passed every five years. It has been used only once: Quebec passed Bill 101: the "Charter of the French Language" in 1977. It banned commercial signs written in English on the exterior of stores, even if the proprietor and public prefer multi-lingual signs.

In 2009, a reference case was filed with the British Columbia Supreme Court to test the constitutionality of Section 293 of Canada's Criminal Code -- Canada's anti-polygamy law. The court ruled that the law, as applied to the fundamentalist Mormon form of polygamy is constitutional. However, Chief Justice Bauman commented that an egalitarian form of polygamy called polyamory, that does not include the various forms of abuse found in fundamentalist Mormon types of polygamy, should be legal as long as the persons involved refrain from celebrating marriage ceremonies.

Laws concerning polygamy in other countries:

  • Most Muslim authorities interpret the sayings of Muhammad as permitting a Muslim male to marry up to four wives, as long as he can treat them equally and be able to afford a reasonable quality of life for all. Polygyny -- the marriage of one man and multiple women -- continues to be practiced in many predominately Muslim countries. However, such marriages remain in a minority. Polyandry -- the marriage of one woman and multiple men -- is forbidden.

  • Norway, Britain, and some other European countries are making allowances for the practice of polygyny among their Muslim families, most of whom have immigrated to the West from North Africa, the Middle East, and the Far East.

  • An unusual event occurred in Britain in late 2011. Emily DiSanto, 25, an American neopagan woman, became pregnant, came to Britain on a visitor's visa, and started to live with the father-to-be and his wife. All three are neopagans and worship a pantheon of Norse deities including Odin and Thor. The court learned that the Caulfields were no longer living as "man and wife" but are sharing a home together. The religious beliefs of the married couple, Alan and Anne-Marie Caulfield, prohibit divorce. Government officials denied Emily's request to stay in the country. She appealed the decision twice and finally won her case on the basis that forcing her to return to the U.S. would violate her human right to a family life. A government spokesperson said:

    "We are disappointed by the court’s decision in this case. For too long Article 8 has been used to place the family rights of immigration offenders above the rights of the British public. This is why we will change the immigration rules to reinforce the public interest in seeing those who have breached our immigration laws removed from this country." 6

    It is unclear exactly what rights of the British public were bent out of shape by the three adults living together with their two children.

References used:

  1. "Unofficial versions of the Criminal Code of Canada, sections 279 to 317," at: http://lois.justice.gc.ca/
  2. "Polygamy in Canada: Hunting Bountiful. Ending a half a century of exploitation," The Economist, 2004-JUL-8, at: http://www.economist.com/
  3. Lena Sin, "Polygamy in Canada stretches beyond Bountiful," Canwest News Service, 2009-JAN-08, at:  http://www.nationalpost.com/
  4. Brian Hutchinson, "Polygamy and the legal wrangling that surrounds it. Blackmore case tests constitutional law," National Post, 2009-JAN-09, at: http://www.nationalpost.com/
  5. "Let's talk about polygamy," National Post, 2009-JAN-09, at: http://www.nationalpost.com/
  6. David Barrett & Claire Duffin, "Pagan wins 'family life' human rights case," The Telegraph, 2011-DEC-18, at: http://www.telegraph.co.uk/

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Copyright 2006 to 2011 by Ontario Consultants on Religious Tolerance
Originally written: 2006-AUG-20
Latest update: 2011-DEC-23
Author: B.A. Robinson

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