By Adil James, TMO
In a 270 page decision that seems to provide a detailed look into polygamy from the perspectives of law, sociology, and the personal experiences of witnesses, Justice Bauman of the British Columbia Supreme Court ruled that there is a conflict between Canadaâ€™s law against polygamy and the Canadian Charter of Rights and Freedoms, but that the conflict is legally justified by the harms that the law is meant to avoid. Secondly, the Justice ruled that the application of Section 293 can be applied to adult polygamous marriages.
Therefore the Justice ruled against polygamy in Canada.
On deeper inspection, Baumanâ€™s opinion appears to be a carefully crafted argument in support of Western law curtailing polygamy, which fails to consider important facts which militate against such laws.
The decision is noteworthy because it is a detailed exploration of the field of polygamy. It touches on Islam, respectfully, and explores the involvement of Muslims today in polygamy. The opinion shows the solicited opinions of people providing social services to Muslim families on polygamy. The opinion even refers to Prophet Muhammad (s), and respectfully.
For months Supreme Court Justice Robert Bauman has been considering and preparing this judgment in a case to decide whether Canadaâ€™s law regarding polygamy is limited by its law regarding freedom of religious practice.
Although todayâ€™s ruling is not the final ruling on the matter (the result certainly may be appealed to Canadaâ€™s Supreme Court from the provincial Supreme Court), todayâ€™s ruling will necessarily be a a reference point for future discussion of polygamy in Canada and the US, despite its bias and failure to consider facts inconsistent with its conclusion, because it touches on many tangent issues, especially a deep exploration of Canadian historical law and the Canadian constitutional machinery in relation to polygamy and Section 293.
The case at hand revolved around members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), which continues to espouse polygamy despite the mainstream Mormon churchâ€™s having turned away from the practice. Throughout a corridor of Western states and up into Canada (especially Bountiful, BC), many Mormons continue the practice despite the certain illegality in the US and the illegality until now of the practice in Canada.
The judgment is a measured look at many issues surrounding polygamy, but it does show some bias against polygamy from the beginning, by exploring the harms of polygamy over many pagesâ€”likely half the pages in the judgment either mention harms from polygamy or are in support of sections that explore the harm from polygamy. The opinion does not explore an issue directly impacted by the law which is not enforced, namely sexual relations outside of marriage. Bauman does not discuss whether it is fair to enforce s. 293 against polygamists but then fail to enforce the law against adulterers, or whether it is fair to enforce a law against adulterers while failing to consider the polyamorous activities of people who never marry. He does not consider the evolving notions of what constitutes acceptable sexual behavior, for instance in the past in Western societies it was unacceptable for men and women to cohabit without marriage, and yet now many do so, and bear children without the benefit of legitimacy. He failed to consider polygamy in relation to non-traditional marriages that are now legal in Western countries, such as same sex marriages. While polygamy may be connected to harms in the specific fact pattern Bauman analyzed, it is very unclear that restrictions on polygamy can be enforced without hypocrisy by men, judges and politicians, who engage in affairs outside their marriages, or who otherwise engage in behavior that their ancestors would have had them imprisoned for.
Bauman looks at length at the harms he traces to the FLDS practice of polygamy, but does not consider alternative modes of polygamy, fact patterns that are different. He argues that the majority of nations do not allow polygamy, but he does not delve very deeply into the figures concerning thisâ€”other writers have argued that the majority of the worldâ€™s people live in societies where polygamy is allowed. Important nations allow polygamy, such as Malaysia, India, Egypt, and others. Bauman does not contrast the harms of polygamy as FLDS practices it with the benefits of it in other contexts.
Bauman in his opinion also explores Western historical bases for monogamous marriage. He discusses the harmful effects on children groomed for and coaxed unwillingly into marriages with men many years their senior, who marry multiple women and girls without limits. The judgment explored the fact that some men become an underclass of unattached bachelors for whom no wives are available.
He makes it clear that s. 293 is meant to apply without exception, not allowing any polygamy at all, and he discusses at great length the harms that he connects to polygamy.
Justice Bauman relates these harms as the basis for Section 293; he does conclude that there is a conflict between Section 293 and the Charter, (page 211 of the opinion), â€œI will hereby express my conclusion: I accept the Amicusâ€™ submissions that s. 293 violates the religious liberty of those persons I have described in a manner that is non-trivial and not insubstantial,â€ however in Canadian law as in US law there is a balance that must be performed between the â€œviolation of religious libertyâ€ and the harm such violation is meant to address. Since the facts before Bauman involved abuse and exploitation of minors on a large scale, and since his opinion focused on those harms, it is natural that his resulting opinion found that the Canadian criminal against polygamy justifiably violated those religious liberties.
The judge ruled that Section 293 of the Criminal Code of Canada (which outlaws polygamy) and the Canadian Charter of Rights and Freedoms, the conflict is â€œa law that is substantially constitutional and peripherally problematic,â€ the peripheral problem involving the application of Section 293 against people between 12 and 18 who are involved in polygamous marriages, until they turn 18 (a peripheral issue).
The implications of this court case to date are (1) that Canada will not be the sole Western state to endorse polygamy legally, (2) that Muslims are also constrained by Section 293â€”the application of 293 is not limited to the current facts of FLDSâ€™s wholesale exploitation of minors, (3) the case will likely be appealed and will likely be affirmed, (4) the In the Matter of: Constitutional Question Act, RSBC 1986, Docket S097767, is likely required reading for anyone interested in the Western legality of polygamy, and will likely be required reading for some time.