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Polygamy in Canada Muhammad Aamir Khalique University of Fraser Valley Crim 335 Danijel Ristic

We live in a society where our core culture is multiculturalism. Multiculturalism brings diversity with it which then brings racial and cultural issues and differences. These cultural, racial and religious differences then lead to some legal issues which cost millions of dollars to the Criminal Justice System. One of these biggest cultural differences is polygamy. There is a big debate about current Canadian stand against polygamy. This paper will explore polygamy throughout different cultures in Canada. It will be discussed if it is against Canadian values, norms and laws to have more than one spouse at a single time. If a certain culture or religion allows practicing polygamy, should it be practiced in Canada as well even though it is against the law? If Canadian culture is multiculturalism and multiculturalism just does not mean bringing different colors humans into one place, but it means acceptance of different race and culture. Polygamy means more than one wife at a time. The other forms of polygamy are polygyny, polyandry and group marriage. Polygamy is a situation where one man marries several women. There is a common confusion that polygamy is polygyny, this not the case; however in most countries that permit polygamy, the accepted form of polygamy is polygyny (Nanda & Warms, 2011). It has been found that people in Canada have acceptance to polygamy. According to Nielsen, 2009, a sample of 2093 Canadians was asked how willing they were to accept polygamy. Results of that study showed that acceptance was greater among men and among younger adults, as well as among residents of Quebec or British Columbia than people in other regions of Canada. Most countries do not condone polygamy; in fact it is a concept that is viewed as illegal (Lankford, 2009). This paper aims to define polygamy, highlight various social challenges and controversies that are created due to polygamy. More specifically this paper aims to talk of the

3 advantages and limitations that constitute a polygamous marriage, and the legal issues that rise due to this type of marriage in Canada. The challenges that countries face with trying to address this issue due to freedom of religious belief and the law that protects families and advocates that family relationships should be private.

There is no singe law that is governing the issue of polygamy word wide. Different countries have different take when it comes to this issue (Kilbride & Page, 2012). However in most countries polygamy is illegal; marrying in these countries while still married to another person is a criminal offence and one may be charged with bigamy. In case of such a scenario, the second marriage is not considered at all by the government; it is null and void. Even in a situation that the prior spouse has consented to the marriage, the law will still not recognize this union. The penalty that comes with bigamist is different from one country to another; it varies with jurisdictions. Some people who are interested in polygamy and live in countries that do not accept it, might turn to common-law- marriage. This is a situation that one enters into polygamy in countries that permit it, thus making it valid. The law will have no choice than to recognize this union. Divorce is accepted in most countries, this is the legal way that a married spouse can be allowed to enter into matrimonial commitment with another person. This is because the prior commitment has been counseled.

Canada is one of the countries that prohibit polygamy, according to the Canadian criminal law of the people in Canada, polygamy and bigamy does not have the same meaning. Polygamy does not require marriage to be formal, while for one to be charged with bigamy the marriage has to be formal; as section 214 defines it. 1985 Canadian Law Reform Commission

4 gave its definition that polygamy consists in the maintaining of conjugal relations by more than two persons. When the result of such relations is to form a single matrimonial or family entity with the spouses, this is regarded as polygamous marriage (Ottawa 1985).

According to this definition, the Law Commissioner separated polygamy and bigamy, according to him, unless one has entered into a marriage union when married or with a married person in customary or religious nature, then the law cannot accuse the individual involved as committing bigamy. These are the basis that allows the Canadian law to intervene in marital issues regarding polygamy. When it comes to polygamy, Canada tries to commit itself under the international human right law; offer is citizen the freedom of worship and at the same time guarantee equality between men and women. In situations that a man has many spouses, but they are not bound in any ceremony or ritual, then the law cannot charge that person with bigamy.

Most of those who practice polygyny argue that they are practicing their freedom of religion, but one should distinguish between religious belief and practice. Canada does not restrict religious belief, but under the international law it is permitted to restrict some religious practices (Witte & Green, 2012). As long as a practice undermines the right and freedom of other citizens then the law has permission to intervene. Canadian courts agree that the rights to manifest ones religious belief, can only be limited to legitimate purpose this include the protection of gender equality, the protection of health and the protection of secularism. The act of polygamy is viewed as an act of gender inequality. The reason is that men are allowed to marry different spouses, but when a woman does the same then they are regarded as immoral. This clearly indicates that in a marriage union, women have less say than men, and they are they

5 are to oblige to the rules of men. This should not be the case; marriage should be an equal partnership of love and respect.

Polygamy violates the rights that women should have in a family. Art 38.1 the court decides with accordance with the international law, and the disputes that are submitted to it by the international law shall apply international customs as evidence of a general practice accepted as law and subject to the provisions of Article 5, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law (Fernandez, Carlos R. 2007). It is claimed that polygamy is the right of an individual under the S.2 and S.15 of the Charter of Rights which assures the freedom of expression and to practice religion respectively (Canadian Charter of Rights and Freedoms, 1982). If Canada is to legalize polygamy, many polygamous families would have to be allowed to immigrate and 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 (Bala, 2009).

A woman has the right to be free from any and all types of discriminations. Women are not given a chance to enjoy full rights that they have as citizens where polygamy act is permitted; be it due to religious belief or customary legal norms. This being considered, women in most cases are reduced to subservient roles that reflect their full participation in both the family and public life. Many fundamental rights that the international law recognizes are violated by this act. There are harms that polygamy brings to a woman such as economical, mental,

6 physical and productive harm. There is a trending policy not only in Canada, but worldwide that restricts the practice of polygamy as a method of recognizing womens right and equality.

Article 16 speaks of equality within a marriage constitution, the state is called upon to take all measures that are appropriate, so as eliminate discrimination among women in all the areas, including family relation (Universal Declaration of Human Rights). This step is to ensure that there is a basis of equality between men and women. This article protects the woman and ensures that men are committed to their wives, as the same time it expresses a transformation equality sense by highlighting the reciprocal martial responsibilities that men should share. The law against polygamy also protects the children. The law tries to ensure that whatever conspires within a marriage is in the best interest of a child. Children are always the basic consideration. Article 3 states that, In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (DeMestral, 2008).

So that these goals are achieved, the international human right treaty saw it fit to establish committees to monitor if the states are complying with treaty obligation. For children rights, a convection was establishes; Committee on the Rights of the Child (CRC). This treaty among many others, meet three times in a year to discuss reports from different states and to revise the law and policies that need to be addressed.

There are several other treaties like the Committee on the Elimination of Discrimination against women (CEDAW). This is used t monitor state compliance with the respective treaty

7 obligation. Human Rights Committee (HRC) this is used to look into the political Convectional. Committee on the Economical, Social, and Culture Rights (CESCR) aims to protect economical rights of the people. Most of these treaties have expressed what they feel in matters regarding polygamy. According to CEDAW, HCR, CESCR and CRC polygamy is an act that violets the rights that have been put in place within specific treaties. CEDAW and HRC condemn this practice in general commitment, by recommendation. Article no. 28 of Human Rights Committee states that, It should also be noted that equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle. Polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently, it should be definitely abolished wherever it continues to exist (HRC, 2000).

Following this statement that polygamy violates both the dignity and equality of a woman within a marriage, General Recommendation from CEDAW no 21 on equality in family relationship and marriage states that, Polygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of article 5(a) of the Convention (An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive and Sexual Rights, 2002). Canada does not condone polygamy; they follow what international Human rights have put on the table when dealing with issue of polygamy or bigamy.

8 Polygamy has its benefits, depending with the angle that one looks at it. It increases the demand of women and men as spouses, depending on the type of polygamy that one is involved in. For the husband that has married more than one wife; polygamy offers him prestige and makes him be recognized as a man in the society. The man is guaranteed sexual companionship since he has more than one woman to offer him sexual benefit. The man is viewed as a man who is economically stable, though this might not be true. For the man, there could be other reasons that have drove him to marry more than one woman, maybe his wife is barren, by being involved in a polygamous marriage the man has a chance to have children in the family concept. Some men marry more than one woman just to brag and feel good about them; it increases their self esteem and makes them be recognized as men who can handle different situations with ease. The argument is that if they can handle a big family, then they can handle other hardships in life. Those countries that accept polygamy, give more respect go the man that has more wives and undermines the man that is married to one woman. It also shows that the man is the head of the family and his decision cannot be questioned. Co-wives in most cases are regarded as people who are in constant competition for the husband attention, wealth and time. This is not always the case. If a man plans his family well and meet all the needs that his family has, then co-wives are likely to get along. This is especially if the man had consulted with them before marriage. Wives share burden of the family; caring for the children cleaning and cooking; some of the things that are regarded as the duty of the woman in the house. Wives that work outside the house can be at ease with the knowledge that their children are in the hands of a family member instead of relying on day care to take care of their children. This is not a generation where women did not work, by having a polygamous family, which means that members of the family chip in when it comes to financial issues. Thus

9 the budget burden placed on a man is reduced. The desire be involved in adulterous relationship that may bring rise to disease or strain in a relationship is reduced with polygamous marriage. The rate of divorce is also reduced and this reduces stress on all the parties involved. Those who engage in this relationship believe that one individual cannot love one person. Thus they claim that even if it might not be right and people are against it, polygamy in comparison to being adulterous is the lesser evil (Ferraro and Gary , 2008).

It is said that polygamy undermines the marriage institute. There are a lot of factors that make polygamy a complicate venture all together. For instance, one person in the relationship may fell that they have control and power of another individual. When this takes place, the spouse that does not have the controlling power may feel undermined. For women there is constant worry of the trend that their relationship with their husband might turn to. For instance a woman will worry that the husband will replace her with a woman that is young and beautiful. This will make her feel unattractive, thus reducing her confidentiality. The woman might feel that the husband does not have time to take care of her since he has a lot to attend to. Women might not get along and in the long run this might cause violence, stress and anti-trust in the family. This is not a generation that required men to take care of women; today more and more women are becoming independent. One of the reasons that men opted to marry many wives is to get financial stability. In this day and age this is no longer a reason that is valid. Women know how to take care of themselves. There is more focus on individuality and less focus is being put in family. In fact some women opt not to get married at all. For this reason polygamy seems to be in poor taste and thus people are avoiding it. The other issue about polygamy is that children

10 that are being brought up in this type of family receives mixed signals on family; the role that family play in the society and the responsibility of adults. Love is about respect, understanding, and commitment to one other. Marriage is an institution for two to love, share and cherish forsaking all others. Polygamy is justified adultery, since it promotes the concept of intercourse between different people, and discourages faithfulness and fidelity. Polygamy is encouraged when it is a man who has many spouses, but when it comes to a woman having many spouses, the act is condemned. This makes men be superiors to women and be regarded as important in comparison to women. Legalizing or encouraging polygamy is accepting that women should be treated as objects. A woman is a human being and she has feelings just like men have, she cannot be tossed and turned like she is a piece of property. Men think that women were created for the sole purpose to listen and obey men; this is not the case. By encouraging polygamy, there are high chances that those who live in area that is remote, could end up getting involved in incest. This is because there are areas that have small communities living together. It also gives rise to forced marriage, where woman are forced to marry a man that they do not love or even a man who is way older than them. There are times that women who are below the; legal age limit to be called adults are drugged into marriage and there is little or nothing that they can do about it. This is the reason that polygamy must be discouraged and legal action taken to those who practice it (Jacobson, Cardell and Lara Burton. 2011). Polygamy will always be a controversial issue. Everyone thinks that their opinion is what matters when it comes to this issue. For this reason no one wants to back out. Marriage is a constitution between two individuals; any addition to this is an intruder. The only reason that one

11 should be allowed to remarry is in case of death or divorce. Those who support polygamy claim that one should be given freedom to love and of choice of the number of spouse that they want. They claim that marriage and all that happens in the institution of marriage is a matter that is private and no one should intrude, be it the law, religion o the society. Those that oppose this claim that marriage is an institution that is sacred and should be entered by two individuals forsaking all others. Despite that Canada has not legalized polygamy; the law is not strong enough to decide for an individual the kind of lifestyle that they will live. For example there are countries in which polygamy is illegal, but there are people who are found to be having polygamous marriage beside what the law states. Polygamy is a choice that one makes either for selfish reasons or reasons that are valid, by the end of the day, it is not something that I would advocate for; I believe everyone has one soul mate. Charter of Rights guarantees the individual and fundamental rights of every Canadian. (Canadian Charter of Rights and Freedoms, 1982) S. 1 guarantees the rights listed in the Charter. It is also argued that S.293 of Criminal Code of Canada is also the violation of S.1 of charter of Rights. As S.1 guarantees the rights listed in the Charter, but the recent ruling of Supreme Court of Canada on prohibition of polygamy over rides s.2 and s.15 of Charter so s.1 is automatically violated. It is really important for government to come up with a proper solution to this issue because a small group of Mormons who practice polygamy in Bountiful, British Columbia cannot be constitutionally exempted. S. 33 of Charter which is also known as notwithstanding clause can be used to guarantee the safety and rights of children and women (Canadian Charter of Rights and Freedoms, 1982).

12 References Center for Reproductive Rights and University of Toronto International Program on Reproductive and Sexual Health Law, Bringing Rights to Bear: An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive and Sexual Rights, (2002) at 45). Criminal Code, RSC 1985, c C-46 s 293. Canadian Charter of Rights and Freedoms, s 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. DeMestral A. (2008) Canadian Yearbook of International Law: Fernandez, Carlos R. (2007). Sovereignty and interpretation of international norms. Berlin: Springer. Internet resource Press. Ferraro, Gary P. (2008). Cultural anthropology: an applied perspective. Belmont, CA: Thomson/Wadsworth. Jacobson, Cardell K., and Lara Burton. 2011. Modern polygamy in the United States: historical, cultural, and legal issues. Oxford: Oxford University Press. Kilbride, P. L., & Page, D. R. (2012). Plural marriage for our times: A reinvented option? Santa Barbara, Calif: Praeger. Lankford, R. D. (2009). Polygamy. Detroit: Greenhaven Press. Law Reform Commission of Canada, Bigamy, Working Paper No. 42 (Ottawa: Law Reform Commission of Canada, 1985) at 13. Nanda, S., & Warms, R. L. (2011). Cultural anthropology. Belmont, CA: Wadsworth Cengage.

13 Witte, J., & Green, M. C. (2012). Religion and human rights: An introduction. Oxford: Oxford University Press.