Canada's polygamy legislation

Section 293 of the Criminal Code of Canada explicitly bans polygamy and threatens offenders with a five-year prison term. Bigamy is named as a similarly serious crime in Section 290.

So in Canada, having more than one spouse can get you in trouble, right?

Well, not on the face of it. There hasn't been a successful prosecution for polygamy in Canada for more than 60 years. Nor are statistics kept on how many Canadians live in polygamous marriages, a broad category that covers both men and women with multiple spouses.

Following the failed prosecution of two men from a polygamous sect in the community of Bountiful, B.C., who were charged in 2009 with practising polygamy, the provincial government asked the B.C. Supreme Court to decide whether Canada's prohibition on multiple marriages is consistent with the Charter of Rights and Freedoms. What followed was 42 days of legal arguments from a wide variety of groups interested in the constitutionality of Section 293 of the Criminal Code.

In the hearings, the federal and provincial governments contended that allowing men to marry more than one woman leads to physical and sexual abuse, child brides and the subjugation of women. Lawyers for Bountiful residents, and civil liberties advocates, argued that Canada's Criminal Code law violates the charter's religious guarantees

The 335-page decision handed down on Nov. 23, 2011, by Chief Justice Robert Bauman upheld Canada's polygamy laws, although it said minors who end up in polygamous marriages should be exempt from prosecution.

"I have concluded that this case is essentially about harm," Bauman wrote. "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."

The ruling is expected to be appealed to the Supreme Court of Canada, and has implications for polygamists in the Muslim community and for those who practise polyamoury, or having multiple marriage partners outside a religious context.

A long history

Anti-polygamy laws arose in Canada out of objections to the lifestyle of early members of the Church of Jesus Christ of Latter Day Saints, the Mormons.

The first Mormons came here from the United States in 1888, just two years before their church finally ended the controversial practice of male devotees taking multiple wives.

Sir John A. Macdonald was Canada's prime minister at the time, and his government actively sought out religious groups to settle the country opened up by the newly built Canadian Pacific railroad.

But Macdonald told the head of Canada's first Mormon colony, Charles Card, that he wanted no truck with polygamy. In 1890, as mainstream and dissenting Mormons who still favoured multiple spouses settled on the Prairies, Canada passed its first laws against polygamy. They were, if you like, Mormon-specific.

In fact, until the 1950s, the Criminal Code prohibition on marrying more than one spouse mentioned Mormons in the text. Nowadays, Section 293 isn't aimed at any particular group, just those who "practise or enter into any form of polygamy … or any kind of conjugal union with more than one person at the same time."

Some say that could even enable prosecution of so-called "polyamorist" relationships, three or more consenting adults who have conjugal ties and live together as a lifestyle choice. Adultery or open marriages, where spouses permit each other to have sex outside their union, might also come under the legislation.

Polygamy comes to Canada

Such situations have not attracted prosecutions, but as religions and cultures where some degree of polygamy is tolerated come to Canada, the relevance of Section 293 is growing. Some Muslims believe the Qur'an permits a man to have up to four wives, but only under certain, fairly strict conditions.

In parts of Africa, men take multiple spouses as a cultural practice. Canadian immigration officials have turned down applications from men in legal polygamous unions abroad to bring more than one wife to the country under a family class visa. Also, there have been hundreds of refugee claims by women from such cultures who claim abuse and coercion in forced multiple marriages.

But the situation among members of the breakaway Mormon sect in Bountiful, B.C., has been of most concern to legal scholars and authorities.

There have been those who said governments needed to act, to lay charges against men in Bountiful who have openly engaged in polygamy. The Fundamentalist Church of Jesus Christ of Latter Day Saints in that B.C. town has strong ties to a polygamous sect in Eldorado, Texas, where 12 men were charged after a raid on the sect's ranch in 2008.

Others have said that police action or prosecutions aimed at people in Bountiful risks violating protection of rights to religion, association and liberty under the Charter of Rights and Freedoms. Such a charter challenge would be long, costly and divisive, lawyers warn.

There was also a third point of view: to refer the polygamy law to Canada's higher courts before sending the police into Bountiful. That recommendation came from senior Vancouver lawyer Leonard Doust. Wally Oppal, the attorney general of B.C. at the time had asked for Doust's opinion and wasn't happy when he got it.

"It's no secret that I favoured a more aggressive approach to this," Oppal said, talking about the pressure he felt to end uncertainty about the situation in Bountiful.

In January 2009, the two rival leaders of the Bountiful sect were charged with practising polygamy. Oppal said the arrests were the culmination of an intensive, seven-month assessment by special prosecutor Terrence Robertson.

"I am pleased a prosecution will be proceeding, as it will provide legal clarity as to the constitutionality of Section 293 of the Criminal Code," Oppal said.

However, those charges were later tossed out, prompting the province to launch the constitutional reference before the B.C. Supreme Court.

Warren Jeffs

While B.C. has been unable to win polygamy convictions connected to the religious commune of Bountiful, the province's attorney general is taking credit for helping to prosecute American polygamist leader Warren Jeffs, who was charged along with 11 other men after the 2008 raid in Texas.

Attorney General Barry Penner said in August 2011 that his ministry shared information with prosecutors leading up to the life sentence imposed by a Texas court after Jeffs, the self-proclaimed prophet of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, was convicted of sexually assaulting two teen girls he had taken as brides.

"We developed some information and evidence as we were preparing our court case this spring, asking the courts to rule on Canada's prohibition under the Criminal Code for polygamous marriages," he said.

That constitutional case heard allegations of cross-border marriages involving more than two dozen teenage girls from Bountiful, including at least two 12 year olds and a 13 year old, who were sent to the U.S. to marry older men, including Jeffs.

Several American girls were married to Canadian men, the court heard.

Equality trumps social unease

In 2005, then-prime minister Paul Martin's Liberal government commissioned a series of reports on Canada's polygamy laws and whether to update them or get rid of them altogether. Inevitably, opinions were mixed.

One report, deemed controversial by commentators on the right, called for Section 293 to be struck from the Criminal Code. One of the authors of that was Queen's University law professor Beverley Baines, who said anti-polygamy laws actually helped enable abuse in closed, religious communities such as the one in Bountiful.

"That's why I'm calling for it [polygamy] to be de-criminalized," Baines told CBC.ca news, "so we can concentrate on weeding out abuse and helping women and children in trouble."

Daphne Bramham, author of The Secret Lives of Saints, about the situation in Bountiful, says the authorities need to get tougher with polygamists and start prosecuting people, whatever the legal implications.

"Polygamy is inherently abusive," Bramham says. "It's all about equity, and there's no equity in a polygamous marriage."

That, at the end of day, is what the issue has become, one of equality between men and women. In today's Canada, that's seen as far more important than society's disgust with polygamy per se. What remains to be seen is whether prosecutors and governments have the legal tools they need to enforce the standards that prevail in much of this country.