The decision is a masterwork of legal analysis and I won't offer it the indignity of a synopsis. Suffice it to say that the government won.
On the main question, the constitutionality of s. 293, the Chief held that:
"[1359] For the reasons I have given, s. 293 is consistent with the Canadian Charter of Rights and Freedoms except to the extent that it includes within its terms, children between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time.To cure this minor defect, the Chief elected to limit the meaning of s. 293 to exclude its application to minors between 12 and 17 years of age:
"[1360] For greater clarity, as I have indicated in my reasons, the inconsistency does not extend to persons who marry into polygamy before the age of 18 but are 18 years of age or older at the time of the laying of the Information in respect of conduct that occurred at or after 18 years of age."
"[1362] ... I would read down 'every one' in s. 293 to exclude the noted group of potential accused persons."The Chief distilled the evidence presented and reasons for his conclusion in the introduction to his judgment:
"[5] I have concluded that this case is essentially about harm; more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.On the secondary question, the Attorney General's request for the court to determine the elements of the conduct s. 293 seeks to prohibit, the Chief held that:
"[6] Based on the most comprehensive judicial record on the subject ever produced, I have concluded that the Attorneys General and their allied Interested Persons have demonstrated a very strong basis for a reasoned apprehension of harm to many in our society inherent in the practice of polygamy as I have defined it in these reasons.
"[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."
"[1363] ... [T]he elements of the polygamy offence (s. 293(1)(a)(i)) and those of the conjugal union offence (s. 293(1)(a)(ii)) are the same:This should be of assistance in any future attempt to prosecute a charge of polygamy.
"[1364] Section 293 does not require that the polygamy or conjugal union in question involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence."
- an identified person, who
- with the intent to do so,
- practices, enters into, or in any manner agrees or consents to practice or enter into,
- a marriage, whether or not it is by law recognized as a binding form of marriage, with more than one person at the same time.
This decision also offers helpful definitions of legal terminology in relation to marriage which I suspect will be of interest to readers of this blog, in particular the anonymous commentator who believes that British Columbia's legislation sanctions polygamy by allowing married persons who are not yet divorced to enter into unmarried common-law "spousal" relationships (see the comments to this post for further discussion of this point):
"[135] Polygamy is an umbrella term that refers to the state of having more than one spouse at the same time. It includes both polygyny and polyandry. Polygyny is the practice of a male having multiple female spouses. Polyandry is the converse, a female with multiple male spouses. ...
"[138] Polyamory is subject to varied definitions but refers generally to consensual relationships in which participants have more than one partner. ...
"[139] Bigamy is the act of entering into a marriage when one of the spouses is already married. It is criminalized by s. 290 of the Criminal Code:
290. (1) Every one commits bigamy who"[140] 'Form of marriage' is defined in s. 214:
(a) in Canada,
(i) being married, goes through a form of marriage with another person,(b) being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein.
(ii) knowing that another person is married, goes through a form of marriage with that person, or
(iii) on the same day or simultaneously, goes through a form of marriage with more than one person; or
“form of marriage” includes a ceremony of marriage that is recognized as valid"[141] Bigamy is an indictable offence, and offenders are liable to imprisonment for a term not exceeding five years (s. 291).
(a) by the law of the place where it was celebrated, or
(b) by the law of the place where an accused is tried, notwithstanding that it is not recognized as valid by the law of the place where it was celebrated;
"[142] The offence of bigamy focuses on attempts to enter into multiple marriages by means of the civil marriage process. Its commission involves perpetuating a fraud against the state in that the state’s marriage requirements are employed for a marriage that is a nullity. As the Law Reform Commission of Canada observed in Bigamy, Working Paper 42 ... at 11:
This is why the prohibition of bigamy seems justified, since by assuming all the ritual and official characteristics of marriage, such conduct destroys the meaning of the institution itself. Aside from its duplicity, a bigamous marriage is a valid marriage in all respects: this is what makes it a real threat to the institution."[143] Bigamy frequently also involves a deception against one of the individuals involved.
"[144] In Canada, bigamy is distinguished from polygamy by the requirement of multiple state sanctioned marriages. Individuals who enter into multiple marriages but do not attempt to do so through the civil marriage process are not captured by the bigamy offence."
