Friday, August 03, 2007

Will polygamy eventually be legal in Canada?

Today's National Post explores the difficulties of laying charges of polygamy under Section 293 of the Criminal Code.

The editorial suggests that we need some clarity on this issue, and does not seem to be optimistic that a polygamy charge could be upheld:

The people of Bountiful seem prepared to testify to polygamy's benefits, and in the event of a Supreme Court reference they will find allies in other cultures ranging from Saudis and Somalis to non-religious polyamory advocates. That could leave little friendly ground left for Section 293 to flee to, logically.

The Supreme Court has already reinvented Canadian marriage for the benefit of gays and lesbians, and given that polygamy is accepted across huge parts of the globe (and was practised personally by the prophet of a major worldwide religion), the Court would surely not like to get caught protecting a Western "tradition" in the name of a mere ethnic or quasi-religious prejudice.


So let's assume that one day, polygamy will be legal in Canada. Will those folks be pushing for another redefinition of "marriage"? And how will we handle the spousal benefits?

Anyone in family law would be dealing with complex issues in the event of a divorce. Child custody battles could be a nightmare.

Of course most of us agree that this is not a desirable situation, but how can we prevent it?

Personally, I think it is inevitable, and I challenge you to prove otherwise.

51 comments:

PGP said...

The answer is YES!
Unless we get a government with spine that will stand up the the PeeCee scolds it is inevitable.
First it's man/man/woman/woman then it's whoever wants to couple or triple up then its the group.....bingo bang bongo.

What a wonderful game!

Nicol DuMoulin said...

Joanne,

You are of course right. I am also glad for the Post article sayingthat this is more than jus a religious issue. Many people (including many academic feminists) are - for - polygamy for reasons that have nothing to do with religion.

The problem is, there really is nothing we can do about it a this point. Once the secular law changed, it became intellectually dishonest to deny legal marriage to any other group.

The mental gymnastics one has to do to say SSM is right and polygamy is wrong are great and make one look foolish.

Joanne (True Blue) said...

So that's two agreeing that this is inevitable.

Anyone care to try to convince me that it won't happen?

Nicol DuMoulin said...

Hey Joanne,

Actually, I should clarify my point. I believe that it is intellectually dishonest to be for SSM but not polygamy, but I am not quite sure the courts won't take this track. It depends on how influential the feminist theory lobby is. But then...some feminists are for it.

I'll write an entry in it after I get my thoughts together.

Joanne (True Blue) said...

I'll write an entry in it after I get my thoughts together.

I'm looking forward to it, Micol.

I think the big issue is religious freedom, which is firmly entrenched in the Charter.

Gord said...

Eventually?

This horse is out of the barn.

Canadian Provincial courts have already accepted polygamous relationships for the purposes of spousal support and division of marital property.

http://www.wluml.org/english/newsfulltxt.shtml?cmd%5B157%5D=x-157-538021

The legal precedent is there in Canada.

There is no way a constitutional challenge to the polygamy ban can lose.

Anonymous said...

This living arrangement has the potential to cost taxpayers a lot of money. There was a news article on one of the men at Bountiful, he claimed to have 26 wives and over 100 children. So for income tax purposes, 25 of these women are considered single. If you do easy math and divide the children equally, each woman would be attributed 4 children. With minimal income and the use of one child as an eligible dependant, the tax burden would be zero or close to it. The child tax benefit (non-taxable) would average out to $1,033.00 per month per mother, ($12,396.00 per year) so for 25 mothers, taxpayers are shelling out $309,900.00 per year. This does not take into account the UCCB for children under six, the GST credit ($974.00 per year x 25 - $24,350.00).
There would have to be provisions in place to ensure that the "head of the family" had his income included in the calculations to reduce the government benefits.
DWT

Joanne (True Blue) said...

DWT - Incredible. Maybe that's why the government is reluctant to deal with this mess.

Jeff Davidson said...

joanne, the issues of gender equality surrounding polygamy have been extensely researched. in fact, the SWC, or SOW, as many of your readers prefer to call it, work endlessly to show that polygamy promotes gender inequality and is inherently detrimental to the well-being of the children of polygamist marriages.

this research serves as an excellent defence AGAINST polygamy under the charter of rights.

ironically, conservatives have been more than eager to cut funding for such research.

i doubt a challenge to the charter from polygamy advocates would stand up. there is far more information citing the inequalities created by polygamy than otherwise.
the charter must ensure the equality of all canadians.

Polygamy in Canada: Legal and Social Implications for Women and Children – A Collection of Policy Research Reports

Joanne (True Blue) said...

Jeff, you read the editorial right?

Everytime someone comes up with a point against polygamy, someone in the sect defeats the argument.

The women themselves are happy in this situation. Who are you to tell adult women what to do with their bodies and with whom?

liberal supporter said...

The mental gymnastics one has to do to say SSM is right and polygamy is wrong are great and make one look foolish.

Perhaps, but that is not the discussion here.

The discussion is about whether laws against polygamy can withstand a court challenge. The law restricting couples to different sexes was struck down because it discriminates against a certain kind of person. Just as racial intermarriage laws were.


Restricting something by kind of person is fundamentally different than restricting by number.

Elevators, bars, buses, arenas all have restrictions as to how many people can enter. They do not restrict by kind of person. Restrictions like "No blacks", "No fags" are illegal. But "no more than two people" is legal. It is not discrimination on the basis of who or what you are.

You can say "no more than two people allowed". Since there is no resource limit on how many marriages can exist, so access is not being restricted by restricting it to two people.

Similarly, you can say "only one marriage at a time per person" and it is not discriminating by kind, only by number.

There is no reason or need to legalize polygamous relationships. You don't even need the "notwithstanding" clause to keep marriage as being for two people only and one at a time per person.


As for the Bountiful situation, eventually someone will come forward and their criminal exploitation ring will be exposed and prosecuted. Whether polygamy is legal or not, procurement of teens under 18 for exploitive relationships with old men is still illegal.

I would not be the least surprised if this is an investigation in progress, and the media releases are intended to lull the Bounties into all being in the country and all in one place, so the eventual raid will go easier. It is better if they are all caught at once, to reduce their ability to coerce the victims, and to prevent them coordinating their stories to intimidate the witnesses.

Anonymous said...

Contrary to the statement in the editorial, the Supreme Court did not reinven marriage to benefit gays and lesbians. The Ontario Court of Appeal did so, at which point Parliamant made the reinvention national.

Jeff Davidson said...

The women themselves are happy in this situation. Who are you to tell adult women what to do with their bodies and with whom?

nice try. abortion and polygamy are entirely different issues.

Anonymous said...

Jeff Davidson said...
The women themselves are happy in this situation. Who are you to tell adult women what to do with their bodies and with whom?

nice try. abortion and polygamy are entirely different issues.


Nice try to you Jeff - no one said anything about abortion. The discussion is regarding young women forced into having sex with old men due to "religious" beliefs.
DWT

Joanne (True Blue) said...

abortion and polygamy are entirely different issues.

Well, that was a bit of a tongue-in-cheek comment, but just for argument's sake, why is it all that different?

It's the woman's body. She can choose to do what she wants with it, society says.

If she has made this decision for herself, and not been coerced, how is it all that different?

Joanne (True Blue) said...

L.S. - Some people feel that they are by nature polygamous. Why should they be discriminated against?

SouthernOntarioan said...

As I ranted previously, opponents of polygamy may indeed have significant backing (logically, popularly, etc..)

But proponents of polygamy have time on their side. Now that the government has chosen not to prosecute polygamous relationships (he bloody well confessed for goodness sakes!) its only a matter of time before it becomes legal, either in reality or through the passing of legislation.

Proponents of polygamy will argue that 'mature adults should not be told what kind of relationships they may or may not have'. Its sad but the same arguments for SSM can be made for polygamy. 'Our bodies, our bedrooms, our choices'. Just wait for some study to show genetic trends for polygamy.

While LS brings up a good point that numerical limitations are allowed for practical purposes (elevators, etc..), this point cannot be extended to marriage easily. Some rich man might argue that he can support two wives. He also might argue that it would be more fair to allow him to marry both, so that in the case of his demise, his wives are both equally taken care of. As it stands now only one would get to enjoy the legal benefits of marriage.

Joanne (True Blue) said...

Contrary to the statement in the editorial, the Supreme Court did not reinven marriage to benefit gays and lesbians. The Ontario Court of Appeal did so, at which point Parliamant made the reinvention national.

Well, the Supreme Court upheld the lower court decisions, but yes, it was up to Parliament to change the definition of marriage, which Paul Martin made sure it did.

Joanne (True Blue) said...

S.O. - Fascinating points. Yes, it is true that polygamy will continue to exist whether legal or not.

If the law is never enforced, it's as good as legal anyway.

Then we have to look at the injustice done to the subsequent "wives", as you say, if there is only one legal one.

I saw a documentary a few months ago about just such a situation in the States. The fellow had one official "wife", and two others. They all lived together and "shared" him.

This was all voluntary - The three women loved this guy so much they were willing to share him with the other two. He said he couldn't be satisfied with one woman, so they all agreed.

This was not a cult - just a living arrangement among consenting adults.

Jeff Davidson said...

joanne,

polygamy is illegal. terminating a pregnancy is not.

we could apply your logic to just about anything, ie. prostitution, drug use, mercy killing...

the argument is based on the application of the canadian charter of rights, which seeks to protect the rights as it defines them, to all canadians equally.

Joanne (True Blue) said...

we could apply your logic to just about anything, ie. prostitution, drug use, mercy killing...

Jeff, those things are illegal right now too, but don't you think that advocates wanting to change the law would use that argument as well?

polygamy is illegal That is exactly why we are discussing this.

Arrggh!

Jeff Davidson said...

dwt,

follow the comments thread more carefully.

i don't support polygamy. joanne was attempting to draw comparisons between polygamy and abortion.

Jeff Davidson said...

you snuck abortion into the thread, not me.

polygamy is illegal and i believe will remain that way.

religious beliefs that obstruct basic rights guaranteed under the charter aren't likely to swat the supreme court.

Jeff Davidson said...

i meant sway....but swat works too ;)

Joanne (True Blue) said...

religious beliefs that obstruct basic rights guaranteed under the charter aren't likely to swat the supreme court.

Sway, swat, whatever.

So that is your basic argument? Then why doesn't Oppal go ahead and charge them with breaking the law??????

Joanne (True Blue) said...

Differing legal opinions on the matter here, if you're interested.

valiantmauz said...

So that is your basic argument? Then why doesn't Oppal go ahead and charge them with breaking the law??????

Because he believes he will lose the case.

Ask yourself: do you really want a prosecutor going to trial with a weak case and no willing witnesses, and risk having the law struck down on a freedom of religion Charter defence?

The altenative, which Oppal proposed, is to send a reference to the Supreme Court to thrash out whether the practice of polygamy can be prohibited in Canadian law, and whether that law can be made Charter proof.

In other words, try polygamy and not the polygamists.

The second approach seems sensible to me, because it will not depend on securing a conviction against an individual based on a weak case and in the teeth of a looming Charter issue.

Joanne (True Blue) said...

In other words, try polygamy and not the polygamists

That does seem preferable, doesn't it?

So then if the law were to be found unenforceable by the Supreme Court, Parliament would then have to look at striking down the law, I assume.

valiantmauz said...

So then if the law were to be found unenforceable by the Supreme Court, Parliament would then have to look at striking down the law, I assume.

Not being a legal scholar, I don't know what the ramifications would be. I don't know how the current law is drafted - it may be that the Court would find grounds to uphold the prohibition, if the intervenors could show harm in the practice. Freedom of religion is after all subject to "reasonable" limits.

If the legislation as it stands is not Charter proof, then the question is whether Parliament would or could amend the existing legislation or create new, Charter proof, legislation. There is also the notwithstanding clause lurking in the background.

The point, I think, is that none of the above would be thoroughly investigated in a criminal trial. Rather than waiting on a criminal case to make its way though all the levels of appeal (assuming a strong case and a conviction obtained) up to the Supreme Court of Canada, why not just bite the bullet and address it head on?

Joanne (True Blue) said...

Rather than waiting on a criminal case to make its way though all the levels of appeal (assuming a strong case and a conviction obtained) up to the Supreme Court of Canada, why not just bite the bullet and address it head on?

Yes, I agree with you. That makes sense. But one way or another, this issue will have to be addressed.

Joanne (True Blue) said...

Interesting comment regarding Muslims and polygamy in Canada here.

SouthernOntarioan said...

The SOC has two options if it decides to rule against a law in particular as being unconstitutional. The first is to 'read down' the law, meaning that the SOC gives Parliament the instruction to amend the current law so that it may pass the constitutional challenge. The second is to 'strike down' the law, whereby the law is made null and void.

Oppal could still charge the polygamists and lose. That would do no harm to the law. In fact, I would suggest that Oppal charge them and then put the guy on the stand and ask him if he is in a polygamous relationship. Do you think he'll deny it?

The court then has the option of enforcing the law and find him guilty. Or if the court doesn't believe that he is guilty they can find him not guilty. Either way the law remains intact.

If the community turns it into a Charter challenge on the law itself then they will essentially be admitting guilt.

Joanne (True Blue) said...

S.O. - That sounds quite reasonable. I wonder why they don't go that route?

Rob R said...

Allowing any combination of genders to marry was step 1.
Allowing more than 2 legal parents per child was step 2.
Allowing polygyny to occurr unchallenged is step 3.
If you don't challenge polygyny, you can't hope to challenge polyandry.
Now you have a society in which any number of any gender can be married to any number of any gender and they can ALL be held responsible for each other and for any children involved. Does anyone else see the boom here for the legal profession?

When you have this much potential for lawyers to make money from people's stupidity, there will be no turning back the tide

Joanne (True Blue) said...

Now you have a society in which any number of any gender can be married to any number of any gender

Well, Rob, technically they're not "married" in the eyes of the law (the polygamists, that is).

The first step is for the law to be struck down, and then I'm sure they will push for civil marriage.

On the other hand, what about all those swingers and folks living in all different kinds of plural relationships; heterosexual and otherwise? That is happening too. Why no outcry?

liberal supporter said...

While LS brings up a good point that numerical limitations are allowed for practical purposes (elevators, etc..), this point cannot be extended to marriage easily. Some rich man might argue that he can support two wives. He also might argue that it would be more fair to allow him to marry both, so that in the case of his demise, his wives are both equally taken care of.

Numerical limitations being allowed does extend to marriage, because limiting numbers is not discrimination. The law can be changed if we wish to, but we are not violating human rights if we do not.

The rich man argument is certainly arguable if you are deciding whether we wish to legalize polygamy, but that is not the discussion here.

There is simply no human rights reason that we have to legalize polygamy. No particular kind of person is being discriminated against by limiting numbers.

Joanne (True Blue) said...

BTW, there's another very compelling argument for legalized polygamy, and it's the same one I've heard from the lefties for legalizing prostitution and pot - It's happening anyway, so why not legalize it and thereby be able to exert some control; especially regarding the welfare of the women and children?

(This is not directed at anyone in particular - just a random thought).

Joanne (True Blue) said...

There is simply no human rights reason that we have to legalize polygamy.

Possibly not, but the religious rights obstacle seems to have Wally Oppal stymied.

valiantmauz said...

Allowing polygyny to occurr unchallenged is step 3.

Your sequence is wrong. Bountiful was founded in 1947. That's 60 years of avoidance on the part of B.C. prosecutors and government of all stripes. Thirty-five years of inaction where the Charter did not even obtain (1947-1982). Fifty-six years of polygamy before gay marriage became legal in Canada (1947-2003).

The situation in the States, where gay marriage is nowhere near a "done deal", is no better. They too, have managed to avoid prosecuting, or even charging, the overwhelming majority of polygamists.

They, like B.C., have "freedom of religion" smack dab in the middle of the road to successful conviction.

Anonymous said...

I have a question.

Given that we're moving to fund faith-based schools here in Ontario. And given that the polygamist lifestyle is faith-based.

Would schools under this particular faith-base be paid for by taxdollars if they set up shop here in Ontario?

Does B.C. give this community money to educate their kids?

HuronCountyKatz

Joanne (True Blue) said...

Does B.C. give this community money to educate their kids?

Good question, HCK.

Valiantmauz, thanks for the background. You sound as if you've been doing a bit of research.

valiantmauz said...

A book recommendation, Joanne, if you're interested in the subject: Under the Banner of Heaven by Jon Krakauer.

It is a fascinating history of Mormonism and describes the later fundamentalist offshoots and their misdeeds vividly.

I believe there is an academic argument to be made for legalizing polygamous unions as a civil agreement. In practice, however, polygyny is almost exclusively religious in nature (or at least cloaked in religious guise), and if you read that book, hardly benign.

Joanne (True Blue) said...

Thank you, Valiantmauz. I'll check that out. Looking for some new reading material.

So what do you think about Muslim polygamists?

valiantmauz said...

As far as Muslim polygyny goes, I haven't done enough reading to see where it differs from FLDS polygyny. It's the institution, not the religious cover, that I find objectionable. It's undeniably hyper-patriarchal, leads to the abandonment of boys and abuse of girls, and is an economic non-starter. If our species was skewed 70:30 women to men, then it would makes sense from a biological, social and economic standpoint.

As it stands, though, it looks like a grand scam whereby greedy, wealthy, old men hoard women like chattel. Which naturally sets my leftie alarm bells clanging.

[Having said that, Big Love is a terrific show. Creepy, but terrific.]

liberal supporter said...

From wikipedia discussing Islam (which allows a maximum of 4 wives, and all must be treated equally, but some places have outlawed it anyway):

"For example, polygyny in Bosnia-Herzegovina, Syria, and Lebanon is prohibited by law, In Pakistan if the first wife has not officially given her permission for the second marriage, it is not considered legal and the husband will end up in jail"

Still no requirement to legalize it. It is not a requirement of any major religion. The restriction does not violate human rights.

There were plenty of women claiming their genital mutilation was a good thing for them too. Nobody really believed them, and it has not been legalized.

BC should get a SC opinion, but the police would be further ahead to infiltrate the group, and get some "deprogrammers" on the job. Continual agitating may get the case given more priority.

They are nothing but a cult, and I share your frustration that nothing is being done. I consider the "legal status of polygamy" angle to be secondary. It may prove to be a useful tool to prosecute, so the SC opinion should be pursued. But they really need to get some witnesses ready to testify as to the true situation there.

Joanne (True Blue) said...

But they really need to get some witnesses ready to testify as to the true situation there.

I recall posting on this maybe a year or so ago, and someone from Bountiful made several comments that she was out and trying to bring justice to the situation. I'm sure there are women who have escaped either physically or mentally or both, but it's a difficult issue to prosecute.

Joanne (True Blue) said...

[Having said that, Big Love is a terrific show. Creepy, but terrific.]

Darn, I don't have satellite.

I did find a couple of blogs that were extremely interesting. Muslim women in the U.S. who were involved in polygamous relationships. Does anyone want the URL?

Anonymous said...

I believe that it is intellectually dishonest to be for SSM but not polygamy, but I am not quite sure the courts won't take this track.

Two people or many people. There is a difference.

But, of course, anything that isn't a man and women getting married is wrong, wrong, wrong in the social conservative, knuckle-dragging world isn't Nicol? Why accept equality when you can be a raving bigot, eh?

Joanne (True Blue) said...

Why accept equality when you can be a raving bigot, eh?

And thus, the ad hominems. *Sigh*. Things were going so well.

Anonymous said...

Joanne,

You mentioned the swingers clubs in Quebec. In 2005, the SCC ruled 7-2 in favour of the clubs. Essentially, the ruling said the clubs do no harm to society so they are legal.
http://www.canada.com/ottawacitizen/news/story.html?id=df5ac2e9-351c-4973-bbf2-756403fb1184&k=46743

It seems to me the SCC would use the same yardstick to decide the legality of polygamy and all its forms.

My view is let's get a ruling one way or another and be done with it. My concern is the well-being of the children. I see here a role for BC's child protection authorities.
Louise M.

Joanne (True Blue) said...

Louise, yes, I quite agree with you. I really can't understand the issue about the abuse of 'women and children'.

There are lots of 2-person marriages that have abuse going on. Each one has to be dealt with separately.

So should plural relationships.

BTW, new post on this subject today.