Commercial Litigation and Dispute Resolution Blog

On November 23, 2011, Chief Justice Robert Bauman of the British Columbia Supreme Court issued his much anticipated Reasons for Judgment in Reference re Section 293 of the Criminal Code of Canada, 2011 BCSC 1588, the constitutional reference concerning the validity of Canada’s anti-polygamy law.  Chief Justice Bauman found that the law is consistent with the Canadian Charter of Rights and Freedoms, except to the extent that it purports to subject children to criminal prosecution.

While the Reference was originally initiated in October 2009 following a failed attempt to lay charges under section 293 of the Criminal Code against two individuals in respect of allegedly polygamist activity in the town of Bountiful, B.C., the case was not restricted to the circumstances in Bountiful but rather involved a much broader consideration of the practice of polygamy more generally.  Throughout the hearing, which lasted 42 days, the Court heard extensive evidence concerning the history of polygamy, the manner in which it is practised in Canada and elsewhere, the harms associated with polygamy and the history and importance of monogamous marriage.

Central to Chief Justice Bauman’s conclusions concerning the constitutional validity of the law are his findings of fact based upon the evidence presented.  Most significantly, the Chief Justice found that there is demonstrated harm that results from polygamous marriage, including elevated risk of physical and psychological harm to women and children and economic harm including higher rates of poverty.  The Chief Justice also found that polygamy is harmful to the institution of monogamous marriage which he characterized as a historical and significant value in western societies.

This finding of harm justified the criminalization of polygamous activity under the Criminal Code. On the question of the constitutionality of the law, Chief Justice Bauman found that the anti-polygamy provisions do infringe the freedom of religion of persons who sincerely believe that plural marriage is an essential element of their faith, however in his view the law was saved under section 1 of the Charter on the basis that the benefits of the law far outweigh any negative impacts upon the religious practices of those who engage in polygamy.

One aspect of the law that Chief Justice Bauman did find to be unconstitutional was its purported application to children between the ages of 12 and 17. In his view, if one of the fundamental objectives of the law is to protect vulnerable children, it would be inconsistent to subject those same children to prosecution when drawn, perhaps involuntarily, into polygamous relationships.

One other finding is worth noting. Concern had been expressed by some that if section 293 is interpreted too broadly, it would have the effect of criminalizing consensual adult behaviour, including voluntary multi-party relationships. However, the Chief Justice found that the law is only aimed at actual marriage-like relationships, that is unions that are sanctioned by some form of authority binding upon the participants. Thus common law relationships and other types of voluntary unions are not caught by the law.

The decision is likely to be appealed to the B.C. Court of Appeal and ultimately to the Supreme Court of Canada. For the moment though and subject to what an appellate court may do, section 293 remains valid law and the practise of polygamy continues to be illegal in Canada.

For a more detailed summary of the Reference, click here.