|The constitutional challenge of polygamy|
By Beverley Baines
|Winston Blackmore, religious leader of
the polygamous community of Bountiful, spends time with family members.
Why were no women charged? Did Oppal not relish the optics of responding to a woman’s constitutional challenge by claiming that her protection justifies the prohibition? Second-guessing the life choices of an adult woman constitutes paternalism, according to Brock University politics professor Matthew Hennigar.
Do women believe they need protection from polygamy? How will their views become known when none are parties to the case? The stylized rituals that govern Charter litigation give no thought to hearing from women.
Instead, the accused will begin by claiming violations of their Charter rights. Blackmore has long maintained that he would rely on the guarantee of religious freedom in s. 2(a) of the Charter. He should have no difficulty sustaining this claim since multiple marriages are a tenet of the Fundamentalist Church of Jesus Christ of the Latter Day Saints (FLDS), the variant of Mormonism that he practises, and given his belief in this tenet is sincere as required by Syndicat Northcrest v. Amselem  S.C.J. No. 46.
Following the advice of Osgoode law Professor Susan Drummond and the B.C. Civil Liberties Association, the accused might invoke R. v. Morgentaler,  S.C.J. No. 1 to argue that the vague wording of s. 293 (“Every one who...agrees...to...enter into...any kind of conjugal union with more than one person at the same time”) infringes their right to liberty under s. 7 of the Charter. They might also turn to the Canadian Supreme Court’s formal equality jurisprudence in R. v. Hess; R. v. Nguyen,  S.C.J. No. 91 to claim infringement of their sex equality rights under s. 15(1) of the Charter because prosecutors never charge women with this crime.
The real contest will occur at the s. 1 justification stage. Attorney General Oppal will argue that prohibiting polygamy protects women from sexual exploitation. Apparently, the Harper government will also defend s. 293, raising “Canadian values” as the basis for derogating from the protection of Charter rights. Redolent of “family values,” Canadian values include protecting women’s gender equality and the rule of law.
Protecting women is a hard sell under the Oakes test that courts use to justify limiting rights under s. 1 (R. v. Oakes,  1 S.C.R. 103 requires a measure that limits rights to serve a pressing and substantial objective, as well as to meet the three prongs of a proportionality test — rational connection, minimal impairment and proportionality). When the polygamy prohibition was included in the first comprehensive Criminal Code in 1893, it was animated by the desire to protect the Christian definition of marriage while discouraging Mormon and ex-Mormon immigration. Although the explicit reference to Mormonism was dropped in 1954, the prohibition retained its original consistency with Christianity. Protecting women would constitute a “shifting purpose” contrary to R. v. Big M Drug Mart Ltd.,  S.C.J. No. 17.
The connection between prohibiting polygamy and protecting women is over-inclusive because, as a study by McGill law professor Angela Campbell revealed, not all polygamous relationships subordinate women. The connection is also under-inclusive given the host of circumstances where monogamous women’s choices may be suspect as subject to coercion yet we do not even question, let alone invoke the criminal law (for example, remaining at home and raising children rather than entering the workforce, undergoing plastic surgery or marrying someone from the same religious community). In addition, monogamous wives living in isolation behind the closed doors of single family dwellings may face domestic violence and even death at the hands of individual husbands who are psychotic or socialized to believe they are superior beings.
The prohibition on polygamy is likely to fail the minimal impairment test because it is absolute, whereas the same objectives could be achieved by a partial prohibition, namely the existing policy against legalization. In addition, the polygamy prohibition carries a penalty of up to five years incarceration, which is a harsh sentence not just for Bountiful residents but more importantly for immigrants from countries where polygamy is legal. A policy of refusing to legalize polygamy is less harsh and also more respectful of the people for whom Canada’s multiculturalism policy was designed.
In fact, Canada already has an anti-legalization policy in place in the new Civil Marriage Act, S.C. 2005, c. 33, s. 2. This legislation is sufficient to sustain Canada’s compliance with the anti-polygamy recommendation of the international Committee on the Elimination of Discrimination against Women. Criminalization is overkill, as recognized by the Law Reform Commission of Canada in 1985 when it recommended that polygamy be decriminalized.
The final prong of the Oakes test requires a court to balance the deleterious and salutary effects of the polygamy prohibition. Assuming the balancing is between religious freedom and the protection of women, did the Supreme Court of Canada forever resolve this contest in Bruker v. Marcovitz  S.C.J. No. 54 by favouring the latter?
Whatever the answer, it does not obviate the more fundamental issue: Does Canada need to protect women from polygamy? If Oppal calls women as witnesses, will they be the ex-wives who have played the exit card and can no longer provide first-hand information? Can current “wives” even be called given they may be protected under spousal privilege evidentiary rules, especially if polygamous “marriages” are recognized under the rules of private international law? And what about women who are not from Bountiful, women whose experiences of polygamy derive from Islamic religious beliefs or from African customary religious traditions — will their evidence be called?
The constitutional challenge of polygamy is to hear the voices of the religious women who experience it, to empathize with their accounts and above all not to stereotype them. Are judges, including those on the Supreme Court of Canada, up to this challenge? To date, B.(R.) v. Children’s Aid Society,  S.C.J. No. 24 may be the only case where no court member shared the religion of a religious freedom claimant.
When the polygamy case reaches the court, who will be there for the women who experience polygamy as practised by members of the FLDS Church, the adherents of Islamic religions and the believers in African customary religious traditions?
Bev Baines is a professor of law and head of the Department of Women’s Studies at Queen’s University. Her research interest in women’s equality rights pre-dates the Charter.