The British Columbia Supreme Court (the trial level court in British Columbia) has ruled that the criminal prohibition of polygamy in Canada is constitutional.
On Wednesday, the British Columbia Supreme Court released a 1400 paragraph decision by Chief Justice Bauman, who heard weeks of evidence and argument as to the constitutional legitimacy of s. 293 of the Criminal Code of Canada, which makes entering into, purporting to enter into, officiating at or assisting with any form of plural marriage a criminal offence.
Chief Justice Bauman ruled that while the criminalization of polygamy is clearly a violation of the fundamental freedom of religion contained in s. 2 of the Canadian Charter of Rights and Freedoms, it is a “reasonable limit” on the right.* He found that this limit was reasonable because polygamy creates harm to women, children and society. To quote directly from Chief Justice Bauman’s decision:
[7] I turn to some of the harms that are reasonably apprehended to arise.
[8] Women in polygamous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygamous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They tend to have less autonomy, and report higher rates of marital dissatisfaction and lower levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient.
[9] Children in polygamous families face higher infant mortality, even controlling for economic status and other relevant variables. They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygamous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security. Children are also at enhanced risk of psychological and physical abuse and neglect.
[10] Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls, and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of various problems for both mother and child.
[11] The sex ratio imbalance inherent in polygamy means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives. These young men and boys often receive limited education as a result and must navigate their way outside their communities with few life skills and social support.
[12] Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes.
[13] Polygamy has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygamy also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygamous communities. Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.
[14] Polygamy’s harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists.
[15] I would answer the essential question before me: while s. 293 offends the freedom of religion of identifiable groups guaranteed by s. 2(a) of the Charter and the s. 7 liberty interests of children between 12 and 17 married into polygamy, the provision, save in its application to the latter group, is demonstrably justified in a free and democratic society.
Whether you agree with Chief Justice Bauman or not, this one is going all the way to the Supreme Court of Canada eventually, so stay tuned.
*S. 1 of the Charter says that the rights in the Charter are guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Picture from kirinqueen’s flickr.
Extract of decision from the website of the courts of British Columbia.
