Should Polygamy Be Decriminalized?

Polygamy is illegal in Canada under the Criminal Code section 293. While there are various biological and sociological definitions of polygamy, the decision in Reference re: Section 293 of the Criminal Code of Canada [Polygamy Reference] offers helpful explanations of legal terminology concerning polygamy. Here, the Supreme Court of British Columbia described its legal definition as the practice of "being in a conjugal union with more than one person" or simply, marrying multiple spouses.


In Canada, all polygamy forms, including both Polygyny - a husband with multiple wives - and Polyandry - a wife with multiple husbands – are illegal. At first, without knowing its social and legal implications, the gender-neutral definition of polygamy to me seemed fair and consistent with the equality rights guaranteed by the Canadian Charter of Rights and Freedom. Then, I realized it is only one side of the equation, without considering the sense of disempowerment its counterpart, usually those married to one husband, must live with. Considering how predominant Canadian polygamy families being polygyny, Section 293 must change to protect, at a minimum, those who were married into a polygamous marriage without their will.


Today, countries that permit polygamy are invariably in the form of polygyny and should therefore be the subject of the discussion relating to polygamy. Contrary to this observation, the Court in Polygamy Reference interpreted the anti-polygamy provision in a broad enough manner to capture all forms of polygamy. The discussion surrounding the law's constitutionality claim turned on whether the ban on polygamy creates more inequality and discrimination against the women and children in polygamous families in society as a whole. The Court then decided the anti-polygamy provision was a permissible limitation except for 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". While the Court isolated the rights of those children from the applications of the law, it still has not saved or worsened the women's rights. This is counterintuitive to what the law purports to serve, as it only serves half of the coin while worsening the other side. While the Court mentioned both the social and legal implications of legalizing polygamy as the basis for their decision, it was ultimately, and ironically, the women and children's equality rights and the fact that polygamy was inherently harmful to those rights, that was determinative in the Court's finding that it was a permissible limitation.


Contrary to the stated objective of the provision, a woman who has married to a polygamous marriage (perhaps, as young as she could and as long as it was customary to the religion she was born into) and then claims refugee status from inside Canada for spousal support, is still de facto a criminal. This woman, if prosecuted, would be subject to imprisonment for up to five years. Even if the woman has never consented to be in a polygamous, the outcome remains true. The question is then, should this woman, whose rights and freedoms have been stripped away by entering into a marriage she never wanted, be now subject to further deprivation of liberty for up to five years?


To date, the British Columbia authorities have refrained from prosecuting a community of polygamists residing in their province (partly because members of polygamous unions are reluctant to provide evidence to authorities). Although the BC Supreme Court ruled that the law on polygamy does not extend to polyamorous unions, its formation must have been between consenting adults and remained outside the institution of marriage. One reasonable inference drawn from this non-prosecution is that s.293 would not withstand a challenge over a constitutional claim. However, by not prosecuting s.293, the courts are, in effect, disregarding the legal recognition of the rights of the women and children living in polygamous families as their own citizens, which also implicates an acceptance of polygamy. Therefore, it is apparent that the justification of the prohibition on polygamy that grounds on the protection of the rights of women and children is plainly illogical.


This issue concerning the legalization of polygamy in Canada was brought up in various aspects by Professor Bala. The discussion, in a nutshell, revolved around whether the ban on polygamy creates more inequality and discrimination against children, women, society, and the institution of monogamous marriage as a whole. When I think about the practice of polygamy, the first reservation that comes to mind is neither that it is a matter of freedom of religion and must therefore be decriminalized, nor that it runs counter to the normative values upon which Canada is built and must thus be left as a crime. Instead, the scope of the prohibition on polygamy decided in the Polygamy Reference seems to be what infringes on the Charter rights and freedoms of individuals, and that is what I'm most concerned about.


On that note, I am curious to see whether s.293 can lead to an issue relating to its overbreadth. In criminal law, there have been situations where a law is broadly drawn and targets some conduct that has no relation to its purpose; meanwhile, there is still no connection between the purpose of the law and its effect on the specific individual. Similarly, s.293, which purports to protect the rights of women and children living in polygamous families, criminalizes women involved in the polygamous relationship. While the law's stated objective is to protect women from harm and promote equality, it is the same law that makes these women de facto criminals. Therefore, it is of my opinion that s.293 should either be reformed in a way that limits its scope of application or is legalized to stop its adverse impact on women and society as a whole.

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