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Abstract:
This paper sets the current debate about Canada's criminal law prohibiting polygamy in an historical, social and legal context, and argues that this law is constitutionally valid and sound social policy. Unlike the recognition of same-sex marriage, which promoted equality and saved government resources, the recognition of polygamy would promote inequality and impose costs on Canadian society. The social reality of polygamy is often exploitative of women and harmful to children, and its practice is contrary to fundamental Canadian values. If Canada's prohibition on polygamy is ruled unconstitutional, we would likely have to allow immigration by polygamous families. Western European countries, which allowed immigration by polygamous families in the past, experienced significant social and economic costs as a result, and have ceased to allow such immigration. There is a trend towards restricting or prohibiting polygamy in countries where it has been legal, based on concerns that polygamy is inconsistent with gender equality. The issue of the constitutional validity of this law will be resolved by a reference case being brought by the British Columbia government. Although the prohibition on polygamy is contrary to the religious beliefs of a small group of Fundamentalist Mormons, it is a constitutionally justified restriction intended to prevent harm to women and children. A decision to uphold the law would be consistent with recent Supreme Court jurisprudence restricting religious freedom and with international jurisprudence which has consistently rejected arguments that prohibitions on polygamy violate constitutional rights. Ruling this provision unconstitutional would be inconsistent with the values and opinions of an overwhelming majority of Canadians, and would be inconsistent with the role of courts in a constitutional democracy.
INTRODUCTION: THE POLYGAMY CONTROVERSY IN CONTEXT
Although only a tiny fraction of North Americans live in polygamous families, the issue of polygamy has been the subject of growing attention and controversy. In the United States, there have been a number of recent court cases involving polygamy, including the conviction of the prominent Mormon polygamist Warren Jeffs1 and the apprehension of over 400 children from a polygamous community in Texas,2 as well as a popular television series about a polygamous family.3 In Canada, the murder charges against a polygamous Muslim man, his second wife and their son, for the deaths of the...