Law is Cool Podcast: Polygamy and the Law (Episode 18)

Polygamist leader Winston Blackmore and James Oler are facing criminal charges of polygamy in British Columbia. Polygamy refers to a practice in which a person is simultaneously married to more than one spouse. The most common form of polygamy is polygyny; this is the practice of one man having multiple wives. Social attitudes toward polygamy vary widely across cultures and religions. Polygyny has often been associated with the Mormon and Islamic faiths, although attitudes toward the practice vary enormously within those religious communities.

In Canada, polygamy is not recognized as a valid form of marriage. In fact, section 293 of the Criminal Code states:

293. (1) Every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into

(i) any form of polygamy, or

(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or

(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

In the context of polygyny, s. 293 of the Criminal Code makes all spouses (including the wives) liable to a maximum prison term of five years. Mr. Blackmore has indicated that he plans to challenge the Criminal Code sanction by claiming, among other things, that it is a violation of freedom of conscience and religion as guaranteed in the Charter s. 2(a).

At least one legal scholar believes that a Charter challenge might succeed. Beverley Baines is a Professor of Law and Head of Women’s Studies at Queen’s University. In 2005, she co-authored one of a series of four policy papers regarding polygamy funded by Status of Women Canada’s Policy Research Fund. That paper argues, inter alia, that the criminalization of polygamy may be vulnerable to Charter scrutiny.

The polygamy issue has also promted responses from a very different perspective. Some opponents of same-sex marriage have argued that re-defining marriage could open the door to further revisions including polygamy. Dr. Margaret Somerville is one of Canada’s most well-known bioethicists. She is Samuel Gale Professor of Law at McGill University and the Founding Director of the McGill Centre for Medicine, Ethics and Law. She argues that marriage as a social institution has its basis in the biology of natural procreation. In her view, the same-sex marriage debate marked a fundamental shift in our concept of marriage from one that is based on biology to one that is based on personal preference. She argues that this has opened the door for legal reconition of marriage rights in polygamous marriages, possibly to the detriment of the children of those marriages.

On today’s podcast, I interview both Professors in order to explore some of the legal and social challenges raised by polygamy. As we follow the Blackmore case through the court system, it will be interesting to see how these challenges will be addressed.

9 Comments on "Law is Cool Podcast: Polygamy and the Law (Episode 18)"

  1. As always… the views expressed by the guests on the show do not necessarily reflect those of the Law is Cool contributors, etc.

    I am interested to know what our listeners have to say on the topic.

  2. Two and a half things I found particularly interesting:

    1. Children’s Rights
    First of all, with all due respect to Professor Somerville, I think we may be conflating several things when discussing children’s interests: we could talk (separately) about a child being raised in a safe and loving manner, being raised by a particular type of family unit, or being raised with knowledge of his or her biological heritage. Secondly, we tend to (at least in our language) forget the children IN polygamous marriages. Do married 14 year old girls fall outside of the scope our discussion of children’s interests?

    Both professors indicated that there is a dearth of knowledge with respect to the treatment of women and children in Bountiful. That brings me to the second thing I found interesting.

    2. Evidence
    I had the pleasure of listening to a lecture by John Ralston Saul the other day; he made the odd-sounding suggestion that the court’s decision to admit oral history per the Delgamuukw decision should have a broader scope of application. That got me thinking about assault, and the gender disproportionality of assault evidence (women may not always be physically ‘marked’ by sexual assault). Professor Baines pointed out that since polygamy is illegal, we can’t study the effects of polygamous relationships (or at least not in a manner by which the studies are admissible in court??) I’m wondering, I guess, to what extent rules of evidence obscure the harm-to-women-and-children argument.

    1/4. Polyamory
    Section 293. (1) (a) (ii) seems to apply to non-marital relationships (unless I’m reading it incorrectly). While threesomes (etc.) might not be prosecuted, do we care that there’s a law on the books prohibiting polyamory?

    1/4. Age of Consent
    As much as I don’t want the phantom of Steven Harper in anyone’s bedroom, the Cons’ decision to raise the legal age of consent to 16 has interesting implications for the practice of polygamy.

  3. Devin: Great post and podcast, as always!!

    Personally I think polygamy is set to come off the books as soon as the Supreme Court hears the matter.

    Particularly with respect to the indecency sections of the Criminal Code, The Supreme Court has signaled a shift towards a harm-based approach rather than an approach that criminalizes behaviour if it offends community standards of tolerance. In other words, no harm, no foul – and therefore no criminal conviction.

    I expect that this reasoning will be applied in the polygamy context and it will be found that polygamy is a lifestyle/religious choice entered into by consenting adults that does not, in itself, cause harm.

    I don’t know how much recognition polygamy will receive in other areas, such as in tax law or family law. But its days as a criminal offence are numbered.

  4. Lawrence, polygamy is recognized in family law – at least in Ontario.

    Section 1(2) of the Family Law Act
    In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.

    Professor Baines’ statement that as much as a third of Canada’s population belong to religions that may subscribe to polygamy is off by an order of magnitude – if not less.

    I am, to understate things, not a fan of Professor Somerville. I disagreed with most things she said on the podcast, but I’ll point out some highlights. Somerville talks about the right of a child to have a mother and a father. Which is obviously not the case. Unless we plan to ban single parents. The entire concept of marriage existing to create children is also not true. It’s not true historically, the institution of marriage was a property transfer of a woman (or girl) from her father to a man. It’s certainly not true today. Look at childless marriages. Or look at people who cannot have children.

    Somerville states that children of artificial insemination almost unanimous say would not have consented it they knew they would not know their biololgical parent. I know quite a few children of articificial insemination (I am one myself) and none of us hold that opinion. In fact, if the children interviewed thought about it they would realize that probably don’t actually believe they would rather not exist than live without knowing who their biological father was (and the logical outcome of that is suicide).

    The podcast ended with Somerville talking about revisiting (read “ending”) same-sex marriages. Somerville states that this must be done in a respectful way. What exactly is a “respectful” way having the government forcibly divorce gay couples?

  5. I think there are really two constitutional questions that may need to be decided. The first is the constitutionality of s. 293. On that front I think it is virtually a slam dunk against the prohibition. Its breadth would never stand up to Oakes. As its written its illegal to have a ceramony and live together as husbands and wives. No way does that survive rational connection, minimal impairment or proportionality.

    On the issue of state recognition I think it might go the other way. Since it is a positive state obligation it would probably need to fall under s. 15 (although after the Health Services case regarding collective bargaining I wonder if the court isnt moving away from a negative rights conception of the fundamental freedoms part of the Charter). I dont know of any case holding that multiple spouses is an “analogous ground”. If the court was looking for a way to avoid state sanctioning of polygamy I suspect that would be there way out.

  6. Very interesting set of guests, Devin. I have some real questions about your first guest’s assumption (and, it seemed, yours) that polygamy is always or even mostly a religious phenomenon in Canada, though. I certainly don’t have any stats, either, but I would bet good money that there are lots more Canadians living quietly in committed polyamorous relationships than there are people practicing polygamy as it is known in Islamic or Mormon cultures. If that’s true, that makes the issues about religion and immigration far less significant, and it also calls into question the assumptions about power differentials (since in polyamorous relationships, it’s as likely to be more than one man as more than one woman–or two of each).

  7. Don Morgan, Saskatchewan Attorney General,Canada, allows Polygamy, which is against Federal Criminal code law(he does not report his own alleged Criminal code violation of the law, which wouled be to assist in the creation of Polygamous relationships, consenting for unwilling victims etc.)to RCMP):
    Two members of a Mormon splinter group were charged recently with practicing Polygamy in Bountiful, British Columbia, Canada. On has claimed religious persecution by government.

    The federal Criminal Code of Canada states:
    S. 293. Everyone who
    (a) practices or enters into or in any manner agrees or consents to practice
    or enter into
    (i) any form of polygamy
    (ii) any kind of conjugal union with more than one person at the same
    time, whether or not it is by law recognized as a binding form of marriage,
    (b) celebrates, assists or is a party to a rite, ceremony, contract or
    consent that purports to sanction a relationship [that is polygamous]
    is guilty of an indictable offence and liable to imprisonment for a term
    not exceeding five years.”
    This section is very general, capturing formal and informal arrangements.
    It captures cohabitation as well as marriage; and it encompasses
    both heterosexual and same sex relationships.

    However, that has changed now and Polygamy is legal in at least one Canadian province. Indeed, two different Attorney Generals of that province and at least four Family Court (Queens Bench) justices have commented and argued in public court cases that a married woman may also have same time conjugal unions. Don Morgan of the Saskatchewan Party, who is also Don Morgan Attorney General of Saskatchewan and its’ Justice Minister has commented that Saskatchewan legislation allows multiple conjugal unions and that persons do not need to formally end a marriage to be legally recognized as having other legal spouses in Saskatchewan. His argument is the same as his predecessor Attorney General. Basically, Section 51 of Saskatchewan Marital Family property Act states:

    “Rights of new spouse
    51 Where a person becomes the spouse of a person who has a spouse, the rights
    pursuant to this Act of the subsequent spouse are subject to the rights pursuant to
    this Act of the prior spouse.”

    As early as 1999 and again in 2009 different Queens bench judges have ruled that a married woman may also legally have other conjugal partners under the laws of Saskatchewan. They contend that this does not violate the Federal Criminal code that clearly does not allow plural conjugal unions to exist at same time. In both cases Saskatchewan Attorney General representatives appeared to argue in favor of multiple conjugal unions and in both cases the Federal Attorney Generals declined to appear to defend Canada’s Polygamy law.

    Canada’s Immigration rules do not allow potential immigrants to be both married and also claim another spouse, either as a cohabitation spouse or married.

    The case of Ariza v. Canada (2007) denied entry to Canada to a Muslim who might have claimed to have a wife in the Philippines and a common law cohabitant wife in Canada concurrently. The summary can be found at under Ariza V. canada.
    Summary is:

    “[8] Further, as the appellant lives in Canada and has lived in Canada on a continual basis since 1992, and the applicant lives in the Philippines, there is no factual basis upon which to entertain the possibility that this relationship could be saved under a different classification, such as the concept of common-law marriage. The other concept created in the law in 2002 having to do with conjugal partnership is also of no help, as a conjugal relationship needs to be, by definition, an exclusive relationship. It is not open to the appellant to claim that she is in an exclusive relationship with the applicant, where he is still involved in a legal marriage with his first wife.”
    Now, The persons charged with Polygamy in Bountiful (a different town/ province in Canada)are accused of practicing Polygamy in Canada. On two fronts. One, having more than one spouse at the same time. Second, providing consent and assistance to the formation of simultaneous conjugal unions as “bishops” of the sect.

    One must query why Don Morgan as Justice Minister of Saskatchewan, in a province a short distance away from British Columbia provides unilateral consent and assists with allowing multiple conjugal unions as valid under Saskatchewan law, yet British Columbia Attorney General does not allow Polygamy; are the Attorney Generals reading the same Federal law?

    In the case of Saskatchewan Polygamy, two married women claimed to have a legal conjugal relationship with other men while still legally married. Both men denied this and said they just lived in the same house with the married women and hence had the right to not be legal spouses while the women were married to others. They argued they had the constitutional right to not be the spouse of a person that already had a spouse and they be entitled to live under a “shacked up” but not legally the spouse of a married person”. Don Morgan of the Saskatchewan Party and his constitutional lawyers argued that the women were entitled to have another spouse under Saskatchewan law, even tho they remained married to another. Morgan believes that people do not need to formally end a marriage to take other spouses. In Winik V. Saskatchewan trustee, the Queens bench judge ruled:
    “21] With respect to the first issue, the continuing marriage of Maureen Winik would not necessarily have hindered the formation of a common-law relationship with Randy Wilson. The formation of a common-law relationship does not involve the solemnization of a marriage. Rather it requires a mutual intention to enter into a permanent and exclusive matrimonial relationship”

    “To constitute a marriage valid at common law, that is, in the absence of a statute otherwise specifically providing, it is not necessary that it should be solemnized in any particular form or with any particular rite or ceremony. All that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such a contract, consummated by their cohabitation as man and wife or other mutual assumption openly of marital duties and obligations.”

    “As the formation of a common-law relationship does not require the solemnization of a marriage, there is no risk of violating the criminal sanction against bigamy. The formation of a common-law relationship is not hindered by the existence of a subsisting marriage. Mutual intention of the parties consummated by their conduct, perhaps with an expressive public component, is all that is required for the formation of the relationship.”
    The judge decided to make formal and legal the subsequent spousal relationship unilaterally ( providing consent and assisting)as follows:

    “[40] Maureen Winik, as the common-law spouse of Randy Wilson at the time of his decease, has standing to challenge the constitutional validity of the relevant provisions of the Act.”

    Interestingly, the judge may have determined the new spouses had an exclusive and monogamous relationship, despite the fact that Winik was married and the man had also fathered a child with a different women during their cohabitation!
    You can read the case and decide for yourself.

    The question is, if it is illegal in Canada to have plural spouses in valid constitutional law, and Don Morgan and his Saskatchewan party allow same time multiple conjugal unions, why does British Columbia charge Bountiful members who have done no more? Since Osler and Blackmore (Bountiful) are charged under the Federal Criminal Code Section 293 with having multiple conjugal relations and also performing multiple conjugal relationship consent by sanctioning plural unions, why aren’t the Saskatchewan Attorney Generals and Saskatchewan Queens Bench judges also charged with creating these plural conjugal relationships under law and assisting and consenting to them?

    It seems apparent that the Bountiful residents, Muslim immigrants and others wishing to practice Polygamy in Canada will need to live in Saskatchewan Canada to have legal Polygamous unions.

    Some other provinces in Canada allow multiple conjugal unions if they occurred in a place that allows them. Immigrants must prove their place of origin does allow Polygamy. Since Saskatchewan Canada allows simultaneous conjugal unions it seems unfair that Muslims and others are persecuted for their Polygamist religious beliefs when it is perfectly legal in parts of Canada. Charge them all or charge none as the saying goes! Who will charge Don Morgan and his family court judges?

  8. Observing Canadians | July 4, 2009 at 6:09 am |

    A little scrutiny of Saskatchewan Justice is recommended.
    Don Morgan allows Polygamy. Section 51 of the Saskatchewan Family Property Act has been used by Saskatchewan Queens Bench judges to create Polygamous marital unions for a decade. Then the government sues and wins against Orville to force him to perform same sex marriage. In a reversal (again from Morgan) now the Saskatchewan Justice department wants to make marriage commissioners’ independent of the laws against discrimination? Could it be Saskatchewan is posturing to increase immigration to Saskatchewan by having full fledged communities of Polygamists move to their province? Winston Blackmore and other Polygamists have been arguing that the Federal law against Polygamy discriminates against their religious beliefs so coincidently now Saskatchewan wants legislation to allow religious objections to be recognized in legislation.
    There are federal criminal code laws respecting Polygamy and religious discrimination. They protect Canadians. Saskatchewan ignores them with a little legal wrangling. The real motives are hidden from the simple public.

  9. b) celebrates, assists or is a party to a rite, ceremony, contract or
    consent that purports to sanction a relationship [that is polygamous]
    is guilty of an indictable offence and liable to imprisonment for a term
    not exceeding five years
    Saskatchewan allows Polygamy.
    Therefore the judges that consent to Polygamy should go to jail for 5 years. Also Don Morgan Justice Minister of Saskatchewan.

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