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Members of the polygamous community of Bountiful gather for church. Canadian law bans polygamy, but there haven't been prosecutions for more than 60 years. (Jonathan Hayward/Canadian Press)

In Depth

Polygamy

Polygamy in Canada

Can it be banned?

Last Updated April 25, 2008

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 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.

Sir John A. Macdonald told Canada's first Mormon immigrants in 1888 that polygamy wasn't welcome in this country. (CBC)

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 Sir John A. 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 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.

Yet the situation among members of the breakaway Mormon sect in Bountiful, B.C., is what concerns legal scholars and authorities most at the moment.

There are those who say governments need 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 the polygamous sect in Eldorado, Texas, where hundreds of children are alleged to have been abused and women as young as 14 alleged to be married to much older men.

Others say police action or prosecutions aimed at people in Bountiful would risk 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's also a third point of view: refer the polygamy law to Canada's higher courts before sending the police into Bountiful. That recommendation came from senior Vancouver lawyer Leonard Doust in early April. Attorney General Wally Oppal of British Columbia 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's feeling to end uncertainty about the situation in Bountiful.

Equality trumps social unease

Women from the Eldorado, Texas ranch raided by police and child support workers after allegations of abuse, leave a courthouse where tangled child custody issues are being sorted out. (Tony Guitterez/Associated Press)

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 a lot 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.

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RELATED

CBC Links

Bust up in Bountiful: the fifth estate

External Links

The Secret Lives of Saints
Status of Women Canada reports from 2005

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