Legalize Polygamy: Study

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A new study commissioned by the federal government recommends that Canada legalize polygamy and change legislation to help women and children living in plural relationships.

The paper by three law professors at Queen's University in Kingston argues that a Charter challenge to Section 293 of the Criminal Code banning polygamy might be successful, said Beverley Baines, one of the authors of the report.

"The polygamy prohibition might be held as unconstitutional," Ms. Baines said in an interview last night.

"The most likely Charter [of Rights and Freedoms] challenge would be brought by people claiming their freedom of their religion might be infringed. Those living in Bountiful would say polygamy is a religious tenet."

The possibility of a Charter challenge to polygamy laws has added significance since Paul Martin pledged this week that the first act of a new Liberal government would be to remove the federal government's ability to use the Constitution's notwithstanding clause to override Supreme Court decisions dealing with Charter rights.

Polygamy has been practised for more than 60 years in Bountiful, in southeastern B.C. Last year, the RCMP launched an investigation into allegations of child abuse and sexual exploitation within the fundamentalist Mormon community of 1,000 people. No charges have ever been laid.

The Martin government commissioned the $150,000 study into the legal and social ramifications of polygamy just weeks before it introduced divisive same-sex marriage legislation. Same-sex marriage was approved last June.

Critics said at the time that the study underscored a deep concern in the federal government that legalized homosexual marriage could lead to constitutional challenges from minority groups who claim polygamy as a religious right.

"In order to best prepare for possible debate surrounding Canada's polygamy policy, critical research is needed," a Status of Women Canada document said last year.

"It is vital that researchers explore the impacts of polygamy on women and children and gender equality, as well as the challenges that polygamy presents to society."

Sayd Mumtaz Ali, president of the Canadian Society of Muslims, said last year that he opposes same-sex marriage, but said if it is legalized in Canada, polygamists would be within their rights to challenge for their choice of family life to be legalized.

"This is a liberally minded country with regards to equal rights, and literally millions live common law," Mr. Ali said.

Multiple marriage is legal in most Muslim countries, he said. But Muslim men who take more than one wife must prove to local courts that they are capable of treating them all equally, Mr. Ali said.

Chief author of the report Martha Bailey told The Canadian Press that criminalizing polygamy serves no good purpose.

"Why criminalize the behaviour?" she said. "We don't criminalize adultery.

"In light of the fact that we have a fairly permissive society, why are we singling out that particular form of behaviour for criminalization?, Ms. Bailey told The Canadian Press.

Ms. Baines said polygamy is rarely prosecuted. "No one is actually being prosecuted but the provision is still being used in the context of immigration and refugee stuff. People are not being admitted to the country."

She said removing it from the Criminal Code will not force marriage laws to recognize it, but would only remove criminal sanctions.

The report -- commissioned by the Justice Department and Status of Women Canada and written by Ms. Baines, Bita Amani and Ms. Bailey -- also says the criminalization of polygamy does not address the harms that women in polygamous relationships face and suggests Canadian laws be changed to better serve women by providing them spousal support and inheritance rights.

"They are denied access to our divorce law.... You have a great deal of difficulty claiming your rights with access to children, custody of children and financial support for the children," she said. "We are starting to make accommodations for some small things in some of the provinces [such as] extending support law to women and children in any kind of marriage.

"Polygamous marriages are legal in some countries. They come to Canada, the vast majority of them will not know the law and they have no legal protection. They could be prosecuted. Suddenly, they're living in fear."

Polygamy, outlawed in Canada but accepted in many countries, typically means a man having several wives at the same time.

Source: Legalize Polygamy