Polygamy May Be Legal in Canada under Charter

Polygamy May Be Legal in Canada under Charter

Chloe is a twentysomething legal assistant from Toronto, who hopes to go to law school one day. She's interested in kayaking, camping, painting and photography, "the 'old fashioned' way, with film." As for her thoughts on marriage, she's even more old fashioned: think, Old Testament. "I am interested in polygamy, which brings me here!" she wrote to Sisterwives, an online forum for women in polygamous marriages, for those considering it, and for "poly-friendly individuals, male and female."

Sisterwives is one of a surprising number of pro-polygamy websites, both faith-based and secular, devoted to an act that is illegal - in theory, if rarely in practice - in Canada and all 50 American states. Hundreds of people from around the world have posted to the U.S.-based site, but for the most part, they aren't who you'd expect. They aren't members of fundamentalist breakaway Mormon sects, like those living in enclaves in Bountiful, B.C., as well as in Utah, Arizona, Texas and other states. Nor are they largely immigrants from predominantly Muslim countries where polygamy is sanctioned. Many are increasingly vocal "Christian polygamists," who draw their inspiration from the much-married prophets of the Old Testament.

For others, like William and Mary, a couple from small-town Ontario who asked that their real names not be used, religion has nothing to do with their choice of marriage partners. The couple, who have rewarding jobs and a love of outdoor pursuits, are looking for a second, or sister wife, to complete their family. Polygamy isn't for everyone, says William. He estimates just six per cent of the population could handle the challenges and rewards of multiple spouses. "If we are wired to be not jealous and need more than one person in our marriage," says William, "who is the government to say no to this?"

In British Columbia, that question falls to Attorney General Wally Oppal, a lawyer and a former justice of the B.C. Supreme Court. In fact, governments haven't said no very often. Laws against plural marriages are so rarely prosecuted that a strong case can be made that they are already de facto legal. The object of Oppal's ire - Bountiful, a polygamous community outside Creston, B.C. - has operated with impunity for more than 60 years, despite allegations of forced marriages of underage girls, child abuse and the trafficking of wives across the Canada-U.S. border. A multi-year RCMP investigation has sat with the Crown since last fall without charges being laid.

Despite that, Oppal insists the polygamy law has teeth. "I don't think by virtue of the fact a law has not been enforced makes it an invalid law," he says. Still, he concedes there is a risk that a law, not enforced, can be brought into "disrepute." Nor does he have the support of his department's own legal experts who think the law would fail a constitutional challenge. It's a sufficiently serious issue that it should be resolved in court, he says. If charges aren't laid, he says, "maybe governments should think of revising that law and maybe abrogating it."

Oppal believes polygamy runs counter to Canadian values, but he concedes the issue is open to debate. "The question which arises is, is the offence of polygamy still relevant in today's era," says Oppal. "There's been some suggestions that if two or more women want to marry a man, or vice versa, and they all do it by consent, what business does the state have intervening in that?"

Oppal is the latest in a line of B.C. attorneys general dating back almost 20 years facing huge political heat to settle that question by testing the validity of Canada's polygamy laws by laying criminal charges. That carries much risk. Should polygamists win in court - a real possibility - Canada's already suspect polygamy law would be blown out of the water. Marriage, already open to same-sex couples, could become a very crowded institution. "There's no question about that," says Oppal. "If the courts ruled the polygamy provisions of the Criminal Code are no longer valid then obviously it would mean that the act of polygamy would be lawful conduct. You always take that chance."

While the implications are nationwide, the catalyst is the thousand or so members of Bountiful. There, under successive bishops, the insular members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS) live "the Principle" - beliefs rooted in the earliest Mormon teachings. A central tenet is that men must accumulate plural wives to achieve the highest level of salvation, a belief that the mainstream church abandoned in 1890. "It runs contrary to our value system that we see cases where 14- or 15-year-old girls are being married off to 45- or 50-year-old men," says Oppal. "I think that is abhorrent to Canadian values."

Letters and calls for action have flooded his office, says Oppal. Among the correspondents enraged at the failure to lay charges is Jancis Andrews, an anti-polygamy crusader from B.C.'s Sunshine Coast. "When you became attorney general, people believed that at long last the rapists and pedophiles at Bountiful would be charged. It appears we were mistaken," she wrote him in a recent email. "It would appear that your department is riddled with misogynists who place the so-called untested 'rights' of lawless polygamists above the Charter rights and human rights of women and girls."

Oppal makes no secret of his desire for a prosecution, based not only on polygamy statutes but on child protection laws. So far he has been stymied at every turn. "In the more serious of the areas of charges we would be contemplating, sexual exploitation and sexual abuse, we've had trouble getting witnesses," he says. "Any time police go there, they don't exactly get co-operation. People clam up." There is "considerable evidence that the young girls are consenting to all of this," he concedes. "So then you ask yourself, is this a real and genuine consent?"

Oppal says other "roadblocks" have thwarted efforts to lay charges under what seem to be blatant violations of long-standing laws prohibiting polygamy and the related offence of bigamy. Both sections of the Criminal Code of Canada - 290 for bigamy and 293 for polygamy - carry maximum penalties of five years' imprisonment. But the law against polygamy especially is almost never enforced, says an analysis of the legal and social ramifications of polygamy conducted for the federal government in 2005. In rare cases of a conviction, says the study, for the Justice Department and Status of Women Canada, "the jurisprudence reveals a tendency toward relatively light penal sentences." The polygamy law does nothing to protect women or children, says the study, which recommends the law be repealed and the practice decriminalized - a finding that had Paul MARTIN's former Liberal government running for cover. Moreover, it has little relevance in an increasingly permissive, secular and multicultural country. Marriage has already been legally redefined to include same-sex unions to meet equality provisions of the CHARTER OF RIGHTS AND FREEDOMS. As the Supreme Court of Canada noted in the same-sex marriage reference, the notion of a "Christian" marriage is no longer relevant. "Canada is a pluralistic society," the court ruled. "Marriage, from the perspective of the state, is a civil institution."

Polygamy is also ripe to fall to a constitutional challenge. While many experts say the guarantee of religious freedom is grounds for a challenge, the report's authors say the ban on polygamy is most likely to offend the constitutional guarantee of "liberty," the right to make key personal choices. "In Canada today," the report says, "it is difficult to conceive of a more fundamental personal choice than whom one chooses to marry."

Many immigrants hail from Muslim cultures where their polygamous unions were legally recognized, the report's authors also note. "Why then should a legally sanctioned marital relationship (albeit legally sanctioned in another country) be subject to criminal penalty?" As for those seeking plural marriages in Canada, it asks, "in light of the permissive sexual mores in Canada why single out that particular activity for criminal punishment?"

Successive opinions in B.C. suggest, at the very least, the polygamy law is unenforceable. A first attempt to prosecute polygamists in Bountiful was abandoned in 1992, after legal and constitutional experts consulted by the Attorney General's office unanimously concluded the law "is in direct conflict with the freedom of religion guarantees in Section 2 of the Charter of Rights and Freedoms." One of the experts consulted, retired justice Richard Anderson of the provincial appeal court, concluded: "it would appear that section 293 is obsolete and apart from being unconstitutional is inadequate to solve the real problems confronting society." Oppal concedes similar conclusions were reached in subsequent legal opinions sought by B.C. - one in 2001 by former B.C. chief justice Allan McEachern, and most recently by four senior Crown counsels, including Robert Gillen, the assistant deputy attorney general.

Oppal isn't letting the matter die. His department appointed Vancouver lawyer Richard Peck last week as an independent special prosecutor to review the police file on Bountiful. In B.C., Crown prosecutors determine if a case goes to trial, based largely on two criteria: is there a likelihood of conviction; and, if so, is it in the public interest to take the case to court? The department chose an independent prosecutor since B.C. Crown lawyers have already made their opinion clear: that charges under the polygamy law would fail. Oppal insists he isn't shopping for an opinion favouring prosecution of Bountiful elders. Peck can reach his own conclusions, Oppal says he just wants a resolution. "I'm quite concerned about the exploitation and all the other things that are said to be happening there." But, he adds, "my own personal opinions don't necessarily translate into action."

The view that the polygamy law is on the Charter chopping block isn't universally shared. Though federal Justice Minister Rob Nicholson declined an interview request, a departmental spokesperson offered a terse defence of the status quo: "We have a criminal ban on polygamy that is consistent with the Constitution."

Queen's University law professor Nick Bala also claims the law would survive a court challenge; in fact, he favours putting it to the test. Bala, the author of The History and Future of Marriage in Canada, is disappointed that B.C. is seeking yet another expert opinion. "I don't care what Mr. Peck says, I care about what the courts say," Bala says. Polygamy laws have trumped issues of religious freedom in challenges in several jurisdictions, including the U.S., India and the European Union, he notes.

There's a risk the Supreme Court hasn't finished the process of redefining marriage that started with the reference on same-sex unions, he concedes. "If you open up the definition of marriage, as we have, one can ask, 'Well, if it doesn't have to be a man and a woman, why not more than two parties?' " The issues, though, are different, he believes. "The fundamental basis of the challenge to have same-sex marriage was that allowing it promotes equality, and we don't want to discriminate on the basis of sexual orientation. The argument against polygamy is that it is fundamentally an unequal relationship."

Polygamy, in many Canadian eyes, is defined by the activities of Bountiful, where powerful bishops hold sway, often dictating the selection of partners, in marriages that frequently match teenage girls to much older men. But the cultish world of Bountiful is just one variant. Other polygamists keep a lower profile to avoid the risk of prosecution and the certainty of social censure.

Certainly that is true of the Canadian Muslim community, where polygamous arrangements are not uncommon, but are rarely discussed outside their cultures. "Anecdotally, we hear that in Toronto and Ottawa some so-called religious leaders are performing Muslim [polygamous] marriages," says Alia Hogben, executive director of the Canadian Council of Muslim Women. The group, based in Gananoque, Ont., is opposed to polygamy because of its perceived impact on women's rights. While Muslim men in most cultures must seek the approval of the first wife before adding to the family, she says the reality is different. "The second wife has no rights," she says. "As for the first wife, yes, the husband might ask her permission, but if she says no, what can she do?"

Arifa Muzaffar, the host of an Urdu-language talk radio program in Toronto, has discussed the issue on her program. Sex outside marriage is strictly prohibited, she says. But the Koran allows as many as four wives for men, though women are denied multiple husbands. "To be honest, as a woman, I don't feel bad about it," she says. "Sometimes women are having their periods, their monthly off days, so rather than a man getting into a wrong thing in dating women and bringing a sickness - AIDS and all that - better he should marry [additional wives]."

Muzaffar, a 46-year-old widow, has friends in happy polygamous marriages. She, in fact, had urged her late husband to find a second wife. "I did not have a child for 14 years," she says. " 'It's okay,' I told him. 'It is better that you marry and you can have a descendant.' " He vetoed the idea. It's no easy thing to have many wives, she says with a laugh. "He has to fulfill their rights. He has to divide his nights. He has to divide his money equally."

Asad Dean, chair of the Meadowvale Islamic Centre in Mississauga, agrees many multiple Islamic marriages are conducted in Canada but are simply not registered. It's no different than others who live common-law, he says. "No one says, 'hey, you have to be married to live together.' Those days are over." Polygamous families emigrating to Canada are less fortunate. Their marriages aren't recognized, so multiple wives and their children don't gain entry. "We should allow it," he says. "We should respect different people." That, however, is a can of worms the federal government doesn't want opened. Queen's professor Bala warns if polygamy is decriminalized, polygamous immigration would certainly follow. "We can't discriminate against someone from, say, Afghanistan, who wants to move here with their four wives, or indeed, 30 wives and their 20 or 100 children."

The Internet is alive with debate on the issue. Many sites deal with the sad fate of those forced into polygamous marriages. Pro-polygamy websites offer windows into sunnier views of polygamous life. 2Wives.com is a matchmaking site where the advertisements are curiously chaste, considering the subject matter. John and Becky, a business consultant and bookkeeper from Dallas, are looking for a wife to bring children into the family. "We attend church regularly and I sing in the choir," Becky writes. Another couple in their 50s, a teacher and a nurse from an unnamed location, are also looking for a fertile wife. "We follow the word of God," they say. "Christian plural marriage is not fornication or other fleshly foolishness."

Sisterwives is a site for polygamists to share non-judgmental support and happy chat. It has an entire forum devoted to Big Love, the HBO TV series depicting a modern family living a secret polygamous life in suburban America. The series pulled polygamy out of the closet - a very big closet, what with three wives - for mainstream viewers. It's also earned raves from those who live polygamy every day. "We think it's pretty realistic," says a woman who calls herself Steadfast Love, one of two college-educated wives of Antony. She's impressed with the portrayals of the financial and emotional complexities of the family dynamics, and the pressures of keeping living arrangements secret.

Sisterwives is also a place for advice, on matters spiritual, marital and legal. There's a lively section on sleeping arrangements and intimacy. Opinions vary. Some prefer separate bedrooms, even separate houses; others favour one big room. Some limit sexual intimacy to a husband and one wife at a time. For others, all aspects of marriage are shared. "We are one husband and five wives. We all sleep in the same room with two giant beds," writes Giorgina, "but we spend most time all together in the bigger bed with our husband while the other is more for celestial sex."

Some husbands schedule sex with their wives in strict rotation. "We tried a scheduled nights routine in the beginning, and for us, it did not work," says Steadfast Love. "Thus, we went to all sleeping in the same bed, and letting nature run its course." Giorgina, in a marriage of six, concurs: "We have sex all together or in different configuration according to our desires," she says. "We all enjoy being together in the same room and those who are not having sex love to see others, and those having sex love being seen."

There's a section called Brutal Truths, which warns the uninitiated of some of the downsides of sharing a spouse: the huge potential for jealousy, the social stigma, and the lack of legal or pension rights for subsequent wives. Above all, there is the warning, which few on the Sisterwives site pay much heed, that polygamy is illegal. Well, sort of.

Mark Henkel, founder of TruthBearer.org - an international advocacy group for Christian (read non-fundamentalist Mormon) polygamy - says most U.S. polygamous families, like those in Canada, have little to fear from the law. He estimates there are fewer than 100,000 polygamous American families. "In the modern era, no polygamist has been convicted, or even charged where there was no [other] crime involved," he says from his headquarters in Old Orchard Beach, Maine. Those who get in trouble are those who attempt to legally register second and subsequent marriages. And those who use polygamy as a vehicle for forced marriages, statutory rape, child and spousal abuse. Warren Jeffs, the leader of FLDS members in the U.S. and parts of Bountiful, is currently on trial in Utah on a string of charges, including two counts of rape as an accomplice for his role in marrying an underage girl to her cousin. "Those are separate issues of crime and abuse," says Henkel. "Pure polygamy of consenting adults, legally, is nothing more than cohabitation."

Henkel says the Christian polygamy movement, which started in 1994, is gaining acceptance in the U.S., Canada and elsewhere. It is based on a conservative, fundamentalist reading of the Bible, a veneration of Old Testament leaders and prophets, and a libertarian belief in limited government powers. There is no prohibition against polygamy in the Bible, he notes. "When you do the deep study you realize that, wait a minute, David had eight named known wives, Moses had two wives and Abraham had three wives," he says. "If this is such a bad thing, and so evil, there is no way the holiest men in the Bible would have more than one wife." He says the "anti-polygamy" view of one-wife, one-husband marriage is an invention of the ancient Catholic Church that was later codified into law. It's not for governments to define the "God-given individual right" of marriage, he says. "It occurred before the invention of government and it will occur if government collapses."

Back in Canada, William and Mary aren't ones to thump Bibles. The issue raises undue hysteria in William's view. "There is a general fear in Canada that if people are allowed polygamy there will be a breakdown of, well, everything." Indeed, if polygamy is deemed a threat "in terms of social stability and order" there is some chance that courts might justify limiting marriage to two persons, the justice department analysis notes. It might also justify use of the powerful and controversial "notwithstanding clause" to override any right to polygamy - an option Oppal says is worth considering.

William warns that Oppal forces the issue at his peril. "Those right-wing westerners will start something that will come back to bite them," he says. "There are more people who are willing to let people think as they wish in Canada than not." That said, he abhors the practices in Bountiful. "They marry children, which is not the case with most polygamists."

Winston Blackmore, a Creston-area businessman and a so-called bishop of Bountiful, is an acknowledged target of the RCMP's so-far fruitless investigation. He is one of 34 children of a polygamous father. He has sired, by various estimates, more than 80 children by some 26 wives, some perilously close to 14, then the age of consent. He didn't respond to Maclean's request for an interview, but his opinions are posted on his website and blog. He calls the people of Bountiful victims of "persecution" by the government and the RCMP. "The question is, who can show us a better way," he asks. "Not one single, miserable, promiscuous or fault-finding citizen can show us a system that is superior to our way of life." It's a way of life protected by the Charter of Rights and Freedoms. He calls it a "sacred" document.

Oppal is unimpressed. He, too, has high regard for the Charter; it hangs on his office wall. "I don't think right-thinking people really condone polygamy," he says. "That's my own view, but that may not be the law."

Inevitably, the right or wrong of polygamy seems destined for a future judgment day - by the courts, or a higher power still. The answer hides somewhere in the Charter, the Bible or the Book of Mormon, all open to infinitely creative interpretation.

See also MARRIAGE AND DIVORCE.

Maclean's June 25, 2007