Polygamy ruling expected today

The Supreme Court of British Columbia is set to rule on the constitutionality of Canada’s anti-polygamy law:

On Wednesday, B.C. Supreme Court Chief Justice Robert Bauman will rule on whether Canada’s law against polygamy is constitutional. B.C. put that question to a court reference in 2009 after the failed prosecution of two community leaders from the polygamous community of Bountiful, B.C.

[...]

The reference case posed two questions: Is section 293 of the Criminal Code – the ban against polygamy – consistent with the Canadian Charter of Rights and Freedoms? If not, why not? The second question asked what are the necessary elements of the offence under the provision – that is, does it require that a polygamous union involve a minor or occur in a “context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?”

The governments of B.C. and Canada argued that the polygamy law should be upheld, as the practice is associated with a litany of harms, including exploitation and abuse of women and girls.

Mr. Macintosh argued that the criminalization of polygamy has a range of “profoundly negative consequences,” including heightening the insularity of polygamous communities and potentially making members of such communities more vulnerable to abuse.

Whatever Judge Bauman’s ruling, the case is widely expected to be appealed to the Supreme Court of Canada.

If this case was about legal recognition of polygamy – with massive implications for family law and even immigration policy – it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence.  Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults.  I would be very surprised if the B.C. Supreme Court – and, ultimately, the Supreme Court of Canada – does not find that the section is overly broad and therefore unconstitutional.

Update: the law has been upheld:

B.C. Supreme Court has upheld Canada’s polygamy laws, but said minors who end up in polygamous marriages should be exempt from prosecution.

In a 335-page decision released on Wednesday, Chief Justice Robert Bauman ruled in favour of the section of the Criminal Code outlawing polygamous unions.

In his ruling Bauman said while the law does infringe on religious freedom, it is justified given the harm polygamy causes to children, women and society.

“I have concluded that this case is essentially about harm,” Bauman wrote in the decision that was handed down Wednesday morning in Vancouver.

“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.”

But he suggested the law shouldn’t be used to criminalize minors who find themselves married into polygamous unions.

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About Damian P.

Lawyer with Bedford Law, Bedford, Nova Scotia.
This entry was posted in Child Welfare, Constitutional Law, Criminal Law, Family Law, Polygamy. Bookmark the permalink.

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