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Polygamy—Acceptable Religious Practice or Criminal Act?
Before taking action, the B.C. special prosecutor is seeking clarification on whether or not polygamy laws are valid.


Polygamy has re-entered the Canadian spotlight with the recent recommendation of the special prosecutor to the British Columbia Attorney General to pursue a reference case to the B.C. Court of Appeal rather than prosecute polygamists in Bountiful, B.C. The special prosecutor noted an inability to secure witnesses who would testify on behalf of the prosecution. Additionally, the "marriages" are not registered with the government thus evidence apart from direct testimony was not available. What the special prosecutor suggested was seeking clarification from the courts as to whether or not polygamy laws are valid before seeking to act on them.

… the recommendation of the special prosecutor may be the best way … to proceed …

Many have expressed concern that prosecution of polygamists in the sect in Bountiful would have been met with a defense of "religious freedom" under the Canadian Charter of Rights and Freedoms. Others are frustrated that fear of having the Criminal Code provision on polygamy (Part VIII, s. 293) declared invalid has essentially left the law toothless. For this reason, some regard law officials in B.C. as acting in a cowardly fashion by not pursuing prosecution. However, the recommendation of the special prosecutor may be the best way for a provincial government to proceed at this time.

Why?

There is no requirement in Canadian law that the state recognize any religious practice. We are constitutionally free to practice our faith without state recognition.

The courts have previously ruled on the issue of religious freedom in regard to marriage. The Ontario Court of Appeal, in the Halpern case (2003), refused to accept argument by the Metropolitan Community Church that there was a religious freedom right to same-sex marriage. The court decided to deal only with the legal institution of marriage without "in any way, dealing or interfering with the religious institution of marriage."

The issue is whether the state should engage in restricting a religious practice. In R v Big M Drug Mart (1985) Chief Justice Brian Dickson of the Supreme Court of Canada described the section 2 (a) Charter right in these words:

"The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination … provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own."

The acceptable restriction by government of religious practices that injure one's "neighbours or their parallel rights to hold and manifest beliefs and opinions of their own" is determined by legal analysis of the "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (The Charter, section 1). Restriction is permitted but only if that restriction can meet the test established by the Supreme Court of Canada for so doing.

More troubling than whether or not there would be a legitimate defense to polygamy based on religious freedom is another line of argument.

In the debates about redefining marriage to include gays and lesbians, the courts and advocates argued that procreation was no longer a core element of marriage—that marriage is simply a committed relationship between adults. If this is what marriage is then it begs the question, why only two? Why not three or more? The Law Commission of Canada in its 2001 report Beyond Conjugality raised the same point and argued that there was no reason why the government should not recognize domestic relationships among multiple adults.

Alarmed about that line of reasoning, The Evangelical Fellowship of Canada (EFC), among others, expressed that detaching marriage from "the union of a woman and a man" in "the primary relationship within which children are begotten and nurtured" could eliminate any sound legal reason to restrict the legal institution of marriage to two people. A recent decision of the Ontario Court of Appeal in the "Three Parents" case (2007) intensifies this concern.

The Supreme Court of Canada has clearly stated that the federal Parliament has the right to determine the legal definition of marriage (Reference Re Same-Sex Marriage) (2004). The redefinition of marriage took place ultimately by decision of Parliament. In similar fashion, it is Parliament that has the right to enact and amend the Criminal Code, controlling the definition of polygamy just as it controls the legal definition of marriage.

The EFC opposed the redefinition of marriage and continues to endorse the biblical position that marriage is between one woman and one man. It is those who supported the change in legal definition of marriage that will need to explain how the rationale they employed to redefine marriage once should not be followed to redefine marriage again.

The B.C. special prosecutor's proposal is a good one—as far as provincial jurisdiction and legal argument is concerned—but the decision will, once again, ultimately rest in the hands of Parliament. Parliament needs to get to work if loopholes that would legalize polygamy are to be closed in time to prevent further erosion of the Canadian legal institution of marriage. And Canadians need to get to work on this issue if we expect our elected officials in Parliament to address it.

Don Hutchinson is General Legal Counsel for The Evangelical Fellowship of Canada.

 

 
 
 
 

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