B.C. Court Rules on Constitutionality of Polygamy
In a ruling released within the past week, the B.C. Supreme Court has ruled that the current ban in Canada against polygamy is indeed constitutional.
Among other things, the decision examines the federal Criminal Code provision which make polygamy a crime. Specifically, by virtue of s. 293 of the Code – which imposes up to five years’ imprisonment upon conviction – polygamous marriages have been illegal in Canada since 1892. Moreover, polygamy is illegal even though the participants may be consenting adults, and even though there is no dependence, abuse of authority, undue influence, or other power imbalance in the polygamous relationship.
The matter arose out of polygamy charges which had been laid against two Mormon leaders Bountiful, B.C. The charges were stayed in 2009 and a constitutional issue was referred to the B.C. Supreme Court for its resolution by the provincial government.
After 42 days of legal argument, the court ruled upon the proper balance to be struck between constitutionally-entrenched religious freedom rights on the one hand, and the potential harm to those involved in the polygamous lifestyle – particularly women and children.
While conceding that the present law violates the religious freedom of certain groups (such as fundamentalist Mormons, who advocate marriage between a single husband and multiple wives), the harm against women and children who participate in polygamist lifestyles overrides those concerns. The court had heard evidence that polygamy puts woman and children at risk, and that any encroachment on religious freedom, and freedom of association and expression, were justified. It also heard evidence from individuals directly involved in polygamous relationships.
However, in the context of affirming the criminal nature of such relationships, the court carved out a specific exception for minors: it ruled that those between the age of 12 and 17 who violate the law by participating in a polygamous relationship should not be prosecuted, because that prosecution – coupled with the possibility of the minor serving jail time — would create greater harm to the minor than the polygamy itself. The court urged the federal Parliament to amend the legislation in order to address that concern.
The B.C. Supreme Court’s decision is certainly subject to further appeal. As it stands, it probably affects directly only a relatively small number of Canadians. Nonetheless, it is an important ruling in an interesting area of the law, and one that seeks to strike a balance between Charter-entrenched rights and other interests.
For the full text of the decision, see:
Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (CanLII) http://canlii.ca/t/fnzqf
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