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,
or
(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 canlii.org 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?

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.

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?

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.

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.

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