Legal experts recommend Canada legalize polygamy
Published: Friday, January 13, 2006
TORONTO -- A new study commissioned by the federal government recommends Canada legalize polygamy and change legislation to help women and children living in plural relationships.
The paper by three law professors at Queen's University in Kingston, Ont., argues a Charter challenge to Section 293 of the Criminal Code banning polygamy might be successful, said Beverley Baines, one of the authors of the report.
"The polygamy prohibition might be held as unconstitutional," she said in an interview Thursday night.
"The most likely Charter (of Rights and Freedoms) challenge would be brought by people claiming their freedom of their religion might be infringed. Those living in Bountiful (B.C.) would say polygamy is a religious tenet."
Polygamy has been openly practised for more than 60 years in Bountiful, in southeastern B.C. Last year, the RCMP launched an investigation into allegations of child abuse and sexual exploitation within the fundamentalist Mormon community of 1,000 people. No charges have been laid.
The Martin government commissioned the $150,000 study into the legal and social ramifications of polygamy just weeks before it introduced divisive same-sex marriage legislation. Same-sex marriage was approved last May.
Critics said at the time the study underscored a deep concern in the federal government that legalized homosexual marriage could lead to constitutional challenges from minority groups who claim polygamy as a religious right.
"In order to best prepare for possible debate surrounding Canada's polygamy policy, critical research is needed," a Status of Women Canada document said last year.
"It is vital that researchers explore the impacts of polygamy on women and children and gender equality, as well as the challenges that polygamy presents to society."
Sayd Mumtaz Ali, president of the Canadian Society of Muslims, said last year that he opposes same-sex marriage, but said if it is legalized in Canada, polygamists would be within their rights to challenge for their choice of family life to be legalized.
"This is a liberally minded country with regards to equal rights, and literally millions live common law," Ali said.
Multiple marriage is legal in most Muslim countries, he said. But Muslim men who take more than one wife must prove to local courts they're capable of treating them equally, Ali said.
Chief author Martha Bailey told The Canadian Press that criminalizing polygamy serves no good purpose.
"Why criminalize the behaviour?" she said. "We don't criminalize adultery.
"In light of the fact that we have a fairly permissive society, why are we singling out that particular form of behaviour for criminalization?"
Baines said polygamy is rarely prosecuted.
"No one is actually being prosecuted but the provision is still being used in the context of immigration and refugee stuff. People are not being admitted to the country."
She said removing it from the the Criminal Code will not force marriage laws to recognize it, but would only remove criminal sanctions.
The report -- commissioned by the Justice Department and Status of Women Canada and written by Baines, Bita Amani and Bailey -- also says the criminalization of polygamy does not address the harms that women in polygamous relationships face and suggests that Canadian laws be changed to better serve women by providing them spousal support and inheritance rights.
Polygamy, outlawed in Canada but accepted in many other countries, typically means a man has several wives at the same time.
© The Vancouver Sun 2006
Published: Friday, January 13, 2006
TORONTO -- A new study commissioned by the federal government recommends Canada legalize polygamy and change legislation to help women and children living in plural relationships.
The paper by three law professors at Queen's University in Kingston, Ont., argues a Charter challenge to Section 293 of the Criminal Code banning polygamy might be successful, said Beverley Baines, one of the authors of the report.
"The polygamy prohibition might be held as unconstitutional," she said in an interview Thursday night.
"The most likely Charter (of Rights and Freedoms) challenge would be brought by people claiming their freedom of their religion might be infringed. Those living in Bountiful (B.C.) would say polygamy is a religious tenet."
Polygamy has been openly practised for more than 60 years in Bountiful, in southeastern B.C. Last year, the RCMP launched an investigation into allegations of child abuse and sexual exploitation within the fundamentalist Mormon community of 1,000 people. No charges have been laid.
The Martin government commissioned the $150,000 study into the legal and social ramifications of polygamy just weeks before it introduced divisive same-sex marriage legislation. Same-sex marriage was approved last May.
Critics said at the time the study underscored a deep concern in the federal government that legalized homosexual marriage could lead to constitutional challenges from minority groups who claim polygamy as a religious right.
"In order to best prepare for possible debate surrounding Canada's polygamy policy, critical research is needed," a Status of Women Canada document said last year.
"It is vital that researchers explore the impacts of polygamy on women and children and gender equality, as well as the challenges that polygamy presents to society."
Sayd Mumtaz Ali, president of the Canadian Society of Muslims, said last year that he opposes same-sex marriage, but said if it is legalized in Canada, polygamists would be within their rights to challenge for their choice of family life to be legalized.
"This is a liberally minded country with regards to equal rights, and literally millions live common law," Ali said.
Multiple marriage is legal in most Muslim countries, he said. But Muslim men who take more than one wife must prove to local courts they're capable of treating them equally, Ali said.
Chief author Martha Bailey told The Canadian Press that criminalizing polygamy serves no good purpose.
"Why criminalize the behaviour?" she said. "We don't criminalize adultery.
"In light of the fact that we have a fairly permissive society, why are we singling out that particular form of behaviour for criminalization?"
Baines said polygamy is rarely prosecuted.
"No one is actually being prosecuted but the provision is still being used in the context of immigration and refugee stuff. People are not being admitted to the country."
She said removing it from the the Criminal Code will not force marriage laws to recognize it, but would only remove criminal sanctions.
The report -- commissioned by the Justice Department and Status of Women Canada and written by Baines, Bita Amani and Bailey -- also says the criminalization of polygamy does not address the harms that women in polygamous relationships face and suggests that Canadian laws be changed to better serve women by providing them spousal support and inheritance rights.
Polygamy, outlawed in Canada but accepted in many other countries, typically means a man has several wives at the same time.
© The Vancouver Sun 2006
