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S.

Drummond #1 October 14, 2010



No. S-097767 Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF:

THE CONSTITUTIONAL QUESTION ACT, R.S.B.C. 1986, c. 68 AND IN THE MATTER OF:

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

AND IN THE MATTER OF:

A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22, 2009 CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THE CRIMINAL CODE OF CANADA, R.S.C. 1985, c. C-46

AFFIDAVIT #1 OF SUSAN DRUMMOND

I, Susan Drummond, Associate Professor, Osgoode Hall Law School, 4700 Keele Street, in the city of Toronto, in the province of Ontario, MAKE OATH AND SAY AS FOLLOWS:

1. I am an Associate Professor at Osgoode Hall Law School, where I specialize in legal anthropology, comparative law, civil law and family law. A true copy of my curriculum vitae is attached as Exhibit "A" to this affidavit.

2. I have been retained by Amicus Curiae to provide an overview of various aspects of English and Canadian legal history that relate to family law and the criminalization of polygamy.

3. I certify that I:

a. am aware that in giving my opinion to the Court, I have a duty to assist the Court and am not to be an advocate for any party;

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b. havernadelhisatfidavitandmy report in conformity with that duty; and

c. will. if ealleclon to give oral or further wtittentestimony,givethattestimony in conformity with that duty.

4. Atruecopy of my report is attached as Exhibit "B"tothisaffidavit.

5. I have alsoprev;ously written a legal article on section 293 of the Criminal Code I "Polygamy's Inscrutable Secular Mischief', (2009) 47 Osgoooe Hall Law Journal 317. A true copy of that article is attachecl ssExhibit"C" to this· Affidavit.

SWORN BEFORE ME a ronto,

Ontario, this 14th day Ctober,

2010.

) ) ) ) ) ) )

A Commissiofier'for taking Affidavits

for DASHWOOD

Barrister &$olicitor

961 Kingston Road .,' ...

TorontoOntar.iOCanad~M~E1S8 (416) 'aooma22 (416)690.8738

No. S-097767 Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF:

THE CONSTITUTIONAL QUESTION ACT, RS.B.C. 1986, c. 68 AND IN THE MATTER OF:

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

AND IN THE MATTER OF:

A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22, 2009 CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THE CRIMINAL CODE OF CANADA, RS.C. 1985, c. C-46

AFFIDAVIT #1 OF SUSAN DRUMMOND

TAD/Is

File No.: 00574-0120

FARRIS, VAUGHAN, WILLS & MURPHY LLP Barristers & Solicitors

2600 - 700 West Georgia Street Vancouver, B.C. V7Y 1B3 Telephone: (604) 684-9151

October 2010

DEGREES

\

CURRlCULl1MVlTAE

DRUMMOND, Susan G., Associate Professor Osgoode.Hall Law School

961 Kingston Road Toronto, Ontario CanadaM4E 1S8 (416) 690-1222 (416) 690-8738

D.C.L. (Doctorate inCMJ. Law)

D.E.A. (Dip16med'Etudes Approfondies) B~C.L.(Bachelors in Civil Law)

LL.B.

M.S.W. (MaSters in Social Work) B.S.W.(BachelorsinSociai Work) BA. (Philosophy)

McGill University (2002: Dean' Honour

list)

Universite d' Aix.;;Marseille, 1997. McGill University, 1995.

McGill University, 1995.

McGill University, 1995. Dalhousie University, 1988.

McGill University and King's College, University of London. 1983.

EMPLOYMENT··mSTORY

2003-present 1999 -2003 1993

1992

1991

1989 -1990 1989

1988

Associate Professor,.Osgoode Hall Law School Assistant Professor, OsgOOde Hall Law School. Researcher, ·Quebec Human Rights Co:mnri.ssion. Researchet/ComttiunityOrganizer, Kuujjuaq Social

Services, Kuujjuaq, Quebec.

OrganizetlWriter, Waseskun Native Halfway House, Montreal.

Family Therapist, York Centre for Families, Toronto. Social Worker, Women's Employment Outreach (feminist employment centre), Halifax.

Social Worker, Stepping Stone Centre for Street Prostitutes, Halifax.

Visiting appointments

Spring 2005 Fa112002

Sprlng2001 Sprlng2000 1998 -1999

Visiting Professor, Hebrew University, Jerusalem, Israel

Visiting Professor, Faculty of Law, Universite d' Aix-Marseille Atx-en-Provence, France

Visiting Professor, Faculty of Law, Universite d' Aix-Marseille Aix-en-Provenee, France

Visiting Professor, Faculty of Law, Universite d' Aix-Marseille Aix-en-Provence, France

VisitingProfessor,Faculty of Law, University of New Brunswick.

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SCHOLARLY AND PROFESSIONAL ACTMTIES

Executive positions

2001

Director, Board of Directors, Justice for Children and Youth

1998 - 2002

1993 - 1995

Member, Groupement de Development de Recherche sur l'anthropologie juridique, part of the Centre National de Recherche Scientifique, Paris.

Member, AGREE (Aboriginal Government, Resources, Economy and Environment), McGill University.

Student Representative, McGill Centre for Teaching and Research on Women.

Student Representative, Joint Law/Social Work Committee, McGill University.

Canadian University Delegate, Parallel Meeting of Heads of State, Organization on Security and Cooperation in Europe, Budapest.

1994 -1998

1994 - 1995

1994

Invited presentations, public lectures, etc. (not published elsewhere)

• " Expertise and Academic Freedom", Congress of the Humanities and Social Sciences, Montreal, Spring 2010

• "Academic Freedom in Canadian Universities: The Mapping Models Experience", University of Toronto, January 2010

• " Temporary Marriage in Canadian Shi'ite Communities as a Means of Managing the Financial Consequences of Conjugality", 13th World Conference of the International Society of Family Law, Vienna, Austria, September, 2008

• "Pedestrian Perambulations in Mixed Jurisdictions: Jerusalem and Montreal" Canadian Law and Society Association, Montreal, Spring 2007

• "Mixing up Mixite: mixed marriages in Israel/Palestine", Congress of the World Society of Mixed Jurisdiction Jurists, Edinburgh, Scotland, Spring 2006

• Revisiting the Shari'a law Debate in Ontario" Spinlaw, Osgoode Hall Law School, March, 2006

• "Religion, Diversity and Government" Institute of Public Administration of Canada

Public Service Employees of Ontario, Queen's Park, April 5, 2006

• "Dishing Up Israel: Rethinking the Potential of Legal Mixite"

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Canadian Law and Society Association, York University, Toronto, June; 2006

• "Mapping Legal Sensibilities in Jerusalem: The Middle Ground of Mixed Cityscapes" Canadian Law and Society, Harrison Hot Springs, British Columbia, 2005

• "Understanding the Riots the Banlieus of France"

Osgoode Hall Law School, Public Policy Centre, November, 2005

• "Gender and Faith Based Arbitration"

Centre for Feminist Legal Studies, York University, October, 2005

• "Liminal Spaces: Contact Zones and Middle Grounds" Mapping Law at the Margins Symposium, Brisbane, Australia, in conjunction with the Australian Law and Society, December 2004

• "Mixed Law in Mixed Legal Jurisdictions: The case of Jerusalem" American Law and Society conference, Chicago, June, 2004

• "Jerusalem: The Bedrock of Mixed Legal Jurisdictions", Regional Law and Society Conference, May, 2004

• Invited Speaker: "Envy and Private Law" The Seven Deadly Sins and Private Law, Conference at McGill University, fall, 2003

• "Integrity, Contestation, and Hybridity: Comparative Law Ethnography in a Nomadic World" Law and Society Association and the Canadian Law and Society Association, Vancouver, 2002

• "Jurisdictional Practices and Practical Jurisdictions" Law Forum, CAL T, Laval University, Quebec City, 2001

• "Sexual Assault Law in Canada", presented to the Men Against Sexual Assault Group, University of New Brunswick, 1998

• "Judicial Notice: The Very Texture of Legal Reasoning", presented to the Faculty of Law, University of New Brunswick, 1998.

• "The River and the Riverbed: Cultural Anthropology and Aboriginal Law in Canada", presented to the Department of Anthropology, University of Lethbridge, 1998.

• "The Fragility of Justice: Resolution and Repugnance in Non-Positivist, Non-Naturalist Legal Thinking", presented at the International AGREE Conference, Montreal, 1996.

• "Sentencing Circles and Inuit Law", presented at the Congress of Learned Societies, Montreal, 1995.

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• "Inuit Legal Systems and Intercultural Common Law", presented to the Graduate Society of the Institute for the Study of Canada, Montreal, 1995.

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Papers in refereed conference proceedings

"Strategic uses of the spectacle of law: Andalucian Gitano Family Law",XII International Congress Customary Law and Legal Pluralism, Arica, Chile, 2000

"Les Usages politiques de la toponomie a Nunavik", in Genevieve Koubi and Herve Guillorel, eds., Langues etDroit (Brussels: Editions Bruylant, forthcoming). Presented at "Colloques: Langues et Droit", Universite de Paris, 1998.

Reviewer:

I have been a reader for articles submitted to the following journals and publishers:

Refuge, Canadian Journal of Law and Society, Family Law Quarterly, Osgoode Hall Law Journal, Canadian Journal ofWomen and the Law, Hart Publishing, Routledge

UNDERGRADUATE TEACHING

Courses taught:

Comparative Family Law* (UNB, 1998) Criminal Law (UNB, 1999)

Comparative Family Law* (Osgoode, 1999) Legal Anthropology" (Osgoode, 2000, 2001) Comparative Law (Osgoode, 2001, 2003, 2004) Civil Law" (Osgoode, 2000, 2001)

Family Law (Osgoode, 2002, 2004)

International and Comparative Family Law" (Osgoode Professional Development Program, 2007)

Comparative Law for International Business Students" (OPD, 2008) International and Comparative Family Law* (Osgoode, 2009, 2010)

• These courses had either not been on offer at Osgoode or UNB for a long time or are new courses. For each course, I created a completely new course structure, pulled together new reading materials, and used creative pedagogical techniques in delivering the materials.

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b

GRADUATE SUPERVISION

- David Szablowski, LLM, Osgoode - 2000-2001 (supervisory committee)

- Fareen Jamal, LLM, Osgoode, 2001-2002 (supervisor)

- Janna Promislow, LLM, Osgoode, 2001-2002 (supervisory committee)

- Janna Promislow, PhD Osgoode, 2004-present (supervisory committee)

- Elizabeth Archampong, PhD, Osgoode, 2001-2005 (co-supervision)

- Shadi Mokhtari, LLM, Osgoode, 2002-2004 (supervisor)

- Shadi Mokhtari, PhD Osgoode, 2004-2008 (supervisor)

- Ben Wang, LLM, Osgoode, 2003-2005 (supervisor)

- Noel Semple, LLM, Qsgoode, 2009-10 (supervisory committee)

- Noel Semple, PhD, Osgoode, 2010 - present (supervisor)

- Stu Marvel, LLM, Osgoode, 2008-09 (supervisory committee)

- Stu Marvel, PhD, Osgoode, 2009-present (supervisor)

- Nasser Rego, LLM, Osgoode, 2008-09 (supervisor)

- Nasser Rego, PhD, Osgoode, 2009-present (supervisor

- Leora Wise, LLM, Osgoode, 2008-09 (supervisor)

- Mazen Masri, PhD, Osgoode, 2007 - present (supervisory committee)

- Elaine Tanner, PhD - Social Work, Wilfred Laurier University (supervisory

Committee)

GRADUATE TEACHING

Graduate Seminar in Legal Anthropology and Qualitative Research Methods; fall 2003

I taught a class on qualitative research methods to Osgoode's graduate seminar, 1999-2003.

International and Comparative Family Law, Osgoode Professional Development Program, 2007

Comparative Law for International Business Law Students, OPD, 2008

I also taught on class on qualitative research methods for Osgoode's Immigration and Refugee Law Intensive Program, 2000.

Reading groups:

With two other Canadian scholars (one teaching in York University's Law and Society program, one a Killam fellow in philosophy and political science) I organized two reading groups for graduate and undergraduate students in the spring of 2002 and a third group over the course of the academic year 2003-2004. One group was focused on Aboriginal law and its relation to state law. The second was focused on Shari' a law within a range of state contexts. The third groups was focused on mixed law in Israel/Palestine. Each group met bi-monthly on a non-credit basis to engage in discussions focused on selected readings. I set up a reading group for three Osgoode graduate students and two Osgoode faculty members on Israel/Palestine in the fall of 2007.

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INTERNAL AND EXTERNAL RESEARCH FUNDING

Year Source Amount/year Purpose
2009 SSHRC Conference Grant $19,750 Conference
2005 York Research Grant $3,000 Research
2003-2006 SSHRC (Standard Research Grant ) $105,000 Research
1995 - 1998 Fond pour la formation de $13000 Research
Chercheurs et I' Aide a la Recherche
1996 - 1997 Macdonald Travelling Scholarship $24000 Travel and
Research
1994 McGill Centre for Teaching and $1000 Research
Research on Women
1993 - 1994 Fond pour le formation de $11 000 Research
Chercheurs et l' Aide a la Recherche
1993 -1994 Association of Canadian Universities $10000 Research
for Northern Studies
1993 -1994 Fisher Memorial Award $8000 Research
1993 -1994 John Peacock Memorial Fellowship $5000 Research
1993 Japanese Mennonite Foundation $1000 Research
1993 McGill Northern Training Fellowship $3000 Research
1992 -1993 Max Bell Open Fellowship $10000 Research
PUBLICATIONS
Books published • Mapping Marriage Law in Spanish Gitana Communities, Vancouver, B.C.: UBC Press, 2005

o Winner of Canadian Law and Society Association's Book Prize

• Incorporating the Familiar: An Investigation into Legal Sensibilities in Nunavik (Montreal/Kingston: McGill-Queen's University Press, 1997).

Chapters in books

"Private Law and Envy", Les Sept Peches Capitaux et le Droit Prive, ed Nicholas Kasirer, (Montreal: Les Editions Themis, 2007

"Writing Legal Histories on Nunavik'' in Aboriginal Autonomy and Development in Northern Quebec and Labrador (ed, Colin Scott) (Vancouver: University of British Columbia Press, 2001)

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Papers in refereed journals

"Polygamy's Inscrutable Criminal Mischief", Osgoode Hall Law Journal, Vol 47, No.2, Summer 2009

"Dishing Up Israel: Rethinking the Potential of Legal Mixite", Windsor Yearbook of Access to Justice, Vol 26, No 1,2008

"Prolegomenon to a Pedestrian Cartography of Mixed Legal Jurisdictions: The Case of Israel/Palestine" (2005) 50McGill Law Journal, 899

The Process Geography of Law" , Journal of Legal Pluralism, Nr 45, 2000

"Judicial Notice: The Very Texture of Legal Reasoning", Canadian Journal of Law and Society, 15 (Summer 2000).

With Jean-Marc Sellen, "Following a RhythmlFollowing a Rule: Shared Practice in a Gitano Community in Andalucia", Cardozo Law Review, 20.5-6 (May-July 1999).

"Sentencing Circles and Intercultural Common Law", Occasional Papers, Journal of the McGill Institute for the Study of Canada (1995).

"Aboriginal Women and the Charter", Aboriginal Women's Law Journal, 1.1 (1994).

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Newspaper publications:

"A Marriage of Fear and Xenophobia" Globe and Mail, April 6, 2009

"You Really Want Them All Charged?" Globe and Mail, August 5, 2008

''Not just Muslim women are exploited by 'religious' law", Globe and Mail, Sept, 2005

"Beyond Cartoons", Globe and Mail, Februrary 11,2006

~'A tenacious fidelity to the law" Montreal Gazette, July 22, 2006

Technical reports

Family Violence in Kuujjuaq: Interviews with Kuujjuamiut (1992), for Kuujjuaq Social Services; cited inR. v. Naappaluk(1993).

Administrative Responsibilities at Osgoode Hall Law School

1999-present

1999-2000 2000-2001 2001-2002 2002-2003 2003-2004 2004-present

2008-10

2010 - present 2009 - present

Academic co-ordinator of the University of Montreal/Os goode Hall Law School Exchange program

Academic Policy Committee Academic Policy Committee Graduate studies Committee Admissions Committee

Admissions Committee/Curriculum Reform Committee Director of Exchange Program with University of Montreal Curriculum Review Committee

Senate Academic Policy Committee

York Senate

Osgoode Tenure and Promotion Committee

·SEOFFREYDASHWOO[) Barrister & SOlicitor SEWKingstonfload Toronto,Ontario CanaaaM4E 1 $8 (4 i 6)690 .. 7222 (416)690-8738

.Introduefton

1. I have been asked to setout English and Canadian Iegalhistoryand context on the

issues! discuss below.

AreasofFantiIy Law and CriniliutiLawRelevantto the PoJygamyProvisioD

Ageo/Mflt'l'Ulge

2. Age of matriage is an essential· attribute of marriage relating to status or capacity to marry. As such,. jUrisdiction forage of marriage belongs under the federal head of legislative power, section 91(26) of the Constitution Act, 1867, (U.K.) 30 &; 31 Viet., c.3.1

3. The federal govemment has legislated only twice withrespectto age of'marriage: 1) in the Divorce Act (Ontario) 1930 (Can.), c. 14 which was repealed when the Divorce Act, &C. 1967.;68, c.24 came into foroe,inciudingthose provisions relating to age of marriage;2 and 2)· in The Federal Law-Civil Law Harmonization Act, No.1 2001, c. 4 F- 7.5.3

4. As a result of the repeal of the federal Divorce Act (Ontario) of 1930, the common law mesa! date of reception that had continued through section 129 of the Constitution Act, 1867 post-confederation With respect to age of marriage were revived in common Iawprovlnces," At common law a valid marriage can be contracted if the female has teachedtheageoftwelve years and the male the age offourteen.

1 HereinafterConstittllionAct, 1867.

2 "Report of the Ontario Law RcfonnCotnntission to the Attorney General for Ontario on Certain Aspects of the Proposed Divorce Legislation Contained in Bill-l 87". Department of the Attorney General, 1968.

3 Hereillafterthe Federal H(J1'MOnization Act.

4 Supra, note 2; and ''Report on Family Law, Part Il; Marriage" Ontario Law Reform Commission, 1970 at 36etseq.

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5. Further, the marriage of a child under seven is void ab initio, but the marriage of a girl between the ages of seven and twelve or a boy between the ages of seven and fourteen is voidable only; i.e., if a child under twelve (but older than seven) were to marry, because the marriage would be voidable only, it could not be challenged by anyone other than the parties to it themselves.i

6. Provincial legislatures are granted authority by section 92(12) of the Constitution Act, 1867 to create legislation that deal with matters that relate to the solemnization of marriage. Legal scholars have argued that any provision of those statutes that deal with the matter of age for solemnization of marriage may not affect, and will not be construed to affect, the capacity of a person to marry. A sound legal argument can be raised that any provincial legislation purporting to set the criteria for a matter relating to capacity to marry would be ultra vires. Family law scholar Simon Fodden, for example, notes that "[i]t is probably beyond the power of the province to fail to provide for the marriage of a person who has the capacity to marry, which is a determination proper to federal Iaw.l"

7. The Ontario Law Reform Commission in 1970 noted that, "[i]n relation to the matter of the minimum age at which a person should have capacity to marry, the position of the Commission is that continued reliance upon on the rules provided by the common law is completely unjustified in a nation which is otherwise as advanced as Canada. A legislative correction of this situation would be recommended were the matter one within provincial jurisdiction." 7

8. With the exception of Quebec the situation with respect to age of marriage in Canada remains the same as at 1970: the federal government has not occupied its jurisdiction to legislation with respect to age of marriage.

S Simon Fadden, Family Law, (Toronto: Irwin Law, 1999) at 20. 6 Simon Fodden, Family Law, (Toronto: Irwin Law, 1999) at 20.

7 "Report on Family Law, Part II: Marriage" Ontario Law Reform Commission, 1970 at 38.

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9. The Federal Harmonization Act of 2001 constituted the federal Parliament's first legislation regarding the age of marriage since the repealed Divorce Act (Ontario) 1930. Section 6 of that act stipulates that "no person who is under the age of sixteen years may contract marriage." Section 4 stipulates that section 5 "appl[ies] solely in the Province of Quebec [and is] to be interpreted as though [it] formed part of the Civil Code of Quebec,"

Criminal Law Regulation Relevant to the Polygamy Provision

10. While marriage under the age of 16 is valid under federal civil law, the Criminal Code sets limits on sexual activity with children under the age of 16. Under sections 150.1 - 153, unless the complainant is between 12 - 14 years of age and the accused less than two years older and not in a position of authority with respect to the complainant, or the complainant is between 14-16 years old and the accused no more than 5 years older nor in a relationship of authority or cohabiting with the complainant, it is an indictable offense to sexually interfere with or invite to sexual touching a young person. Sexual interference or an invitation to sexual touching constitutes the offense of sexual exploitation if the adult is in a position of trust or authority with respect to the young person or if the latter is in a position of dependency or is in a relationship with the adult that is exploitative.

11. Canada entrenched a marital exemption to sexual assault in the 1892 code - an exemption based in Lord Hale's doctrine that a man was incapable of raping his wife because marriage created an irrevocable implied consent to sexual relations.' In 1970, Canada again codified spousal immunity. Section 143 of the 1970 Criminal Code replaced the 1892 provision and provided that "[a] male person commits rape when he has sexual intercourse with a female person who is not his wife." (Italics added)."

8 Constance Backhouse & Lorna Schoenroth, "A Comparative Study of Canadian and American Rape Law", (1984) 7 Can.-USL.J. 173 at 174.

9 An Act Respecting the Criminal Law, RS.C., ch. C 34, s. 43 (1970).

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However, in 1983 a revision to the rape provisions in the Criminal Code that transformed the offense into sexual assault also eliminated the martial defense to sexual assault.i''

12. All husbands, regardless of the structure of their family life, in Canada are liable to be convicted of sexual assault of their wives (or any other woman) if they commit the elements of that offense.

13. Since the 19808 the Canadian legal system no longer views spousal abuse as a "private matter". A range of social and legal responses - from battered women shelters, to the adoption in 1986 by the RCMP of a wife-assault charging policy, to the creation of specialized criminal courts for domestic assault, to greater sophistication in understanding spousal assault amongst health-care professionals, to family law orders that account for battered spouse's needs around housing, to judicial decisions that take domestic violence into account in custody determinations - have entrenched a recognition of the vulnerability of women and children to violence within the family. 11

14. The social and legal mechanisms that have been instituted over the last thirty years to address domestic violence are available to all spouses in any form of family arrangement.

Legal and Social History Relevant to Polygamy

History Relating to the Mormons

15. In the late 1850s, the federal government of the United States engaged in the Mormon War in the territory that would become the State of Utah (in 1896) as part of a

10 An Act to Amend the Criminal Code (Sexual Offences), S.C., c. 125, ss. 6 and 19 (1982) (Can.). See Elizabeth Fus, "Criminalizing Marital Rape: A Comparison of Judicial and Legislative Approaches." 39 Vand: L. Transnat'l L. 481 (2006).

II Nick Bala, "Legal Protections for Victims of Spouse Abuse and their Children: the Role of Health Care Professionals in the Justice System," cited in Berend Hovius, Family Law; Cases, Notes and Materials", (Toronto, Thomson Carswell, 2005) at 51 et seq.

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prolonged campaign against what were considered the politically treasonous activities of the Church of the Latter Day Saints. The separatist aspirations of the Mormon Church for sovereignty engaged the American government from the second half of the 19th century until 1890, when the last of four federal anti-polygamy statutes was upheld by the Supreme Court as constitutional and the Attorney General seized the Church's assets and wound down its affairs. The church at that time split between a faction that abandoned polygamy and the Fundamentalist Church of the Latter Day Saints, which continued to uphold the religious principles underpinning the practice for Mormons. 12

16. In the campaign to prevent the politically traitorous establishment of a separatist Mormon theocracy in Utah, federal statutes were passed not only criminalizing polygamy but also depriving Mormons of voting and other citizenship rights such as jury service and barred polygamists from holding public office."

17. Polygamy was regarded by the federal government of the United States as but one of many "evils" sanctioned by the Mormon Church; the greater offense was the establishment of a separatist theocracy. This suspicion of the treasonous thrust of Mormonism also accompanied Canadian attitudes toward the religious group when it arrived in Alberta: The Edmonton Bulletin of8 October, 1887 declared that "no country, much less a young and sparsely peopled country, can afford to allow treason to flourish and social abominations to spread merely because the iniquities are performed under the name ofreligion.,,14

18. American Mormons were not only considered politically treasonous due to their separatist aspirations, there were also regarded through the lens of prevalent attitudes about race and were considered treasonous also for their affiliation to practices that were considered the proclivity of Asians and Africans. The leading American case on the constitutionality of the American anti-polygamy statutes, R. v. Reynolds, 98 U.S. 145

12 Martha M. Ertman, "Race Treason: The Untold Story of America's Ban on Polygamy", 19 Colum: J. Gender & L. 287.

13 Ibid at 288.

14 Sarah Carter, The Importance a/Being Monogamous,' Marriage and Nation Building in Western Canada to 1915, (Edmonton: Athabaska University Press, 2008) at46.

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(1878)t linked polygamy with "Asiatic and African peoples."lS Popular and high literature throughout the 19th century repeatedly portrayed Mormons as barbaric, lascivious, despotic, disorderly, foreign, Black, Asian, and/or childish.16 The American polygamy doctrine had racialized roots. 17

19. In light of the American assault on the Mormon church and political structure, members of the Fundamentalist Church fled to Canada and settled in southern Alberta in 1887. In 1888 they sought permission from John A. MacDonald's Parliament to bring their multiple wives with them and were denied the right to do SO.18

20. Three years later, in 1890, Canada passed its first anti-polygamy legislation, which explicitly addressed and targeted Mormon polygamy: "Everyone who practices ... [w]hat among the persons commonly called Mormons is known as spiritual or plural marriage ... [i]s guilty of a misdemeanour, and liable to imprisonment for five years and to a fine offive hundred dollars.,,19

21. The language of the original polygamy section was drafted with the vagaries of the American polygamy statutes targeting Mormons squarely in mind. Sarah Carter reports that "Canadian lawmakers examined the US legislation (Edmunds-Tucker Act), where it had proven difficult to get convictions, and aimed at convicting on the basis of cohabitation, attacking the Mormons' private ceremonies.,,20

22. Case law immediately following the promulgation of the polygamy offense confirmed the anti-Mormon animus of the legislation. In R. v. Labrie (1891), 7 M.L.R. Q.B. 211 (Que. C.A.) (hereinafter Labrie), Labrie's lawyer argued that "[t]he object of the statute was to repress Mormonism." Both the defendant and the women with whom he cohabited were civilly married to other parties. Defendant's counsel argued that the

IS At 164.

16 Supra note 12 at 309. 17 Supra note 12 at 354. 18 Supra note 14 at 43.

19 Section 5(c) 1890 -An Act Respecting Offences relating to the Law o/Marriage, RS.C. 1886, c. 161. 20 Supra note 14 at 86.

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paragraph of the polygamy section that relates to cohabitation (referring to anyone "[w]ho lives, cohabits, or agrees or consents to live or cohabit, in any kind of conjugal union with a person who is married to another or others in any kind of conjugal union") "only applies to Mormons and the . like who have gone through a marriage of some sort - a "conjugal union" - before cohabiting with one another." Chief Justice Doiron agreed with this argument and held that "[i]t was apparent from the statute that there must be some form of contract between the parties, which they might suppose to be binding on them, but which the law was intended to prohibit." The phrase "conjugal union" was read in such a way by the judge that "[t]he evidence adduced did not justify a verdict of unlawfully living and cohabiting in conjugal union with a person already married to another person."

Marriage Law

23. Prior to confederation, English common law governed the regulation of marriage pending the passage of legislation in colonial governments throughout territories falling under the jurisdiction of the British crown.

24. Until 1836, in England marriage was formed by an Anglican priest according to the substantive norms of modified Roman Catholic canon law for all but Jews and Quakers, who were permitted their own marriage ceremony to form a binding civilly recognized form of marriage.i'

25. Except for Jews and Quakers, all marriages were governed and regulated after the point of marriage by the Anglican ecclesiastical courts until the Matrimonial Causes Act, 1857.

21 Samuel Gampel, "A Commentary on "An Analysis of the Concepts of the Common Law Marriage and the Meretricious Union" 2S R.FL 271 (1977).

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26. In 1836 England recognized the possibility of a purely civil form marriage in the presence of a registrar as an alternative to marriage in the Church of England.22 England continued to recognize religious marriage as a means of entering into a civilly recognized marriage alongside this introduction of non-religious marriage formation.

27. English marriage law was governed substantively by Roman Catholic canon law (which was the substantive law followed by Anglican ecclesiastical courts) as modified by Acts of Parliament.23 The latter body of law did not permit the absolute dissolution of the marriage bond (an a vinculo divorce), however it did permit a separation of bed and board (a divorce a mensa et thoro). The latter divorce could be applied for from the ecclesiastic courts.

28. As Acts of Parliament could modify Roman Catholic canon law, applications for

divorce a vinculo could only be had by a private Act of Parliament.

29. Only divorce a vinculo permitted civil remarriage. Religious remarriage continued

to be prohibited for Catholics and Anglicans, who followed ecclesiastical canon law.

30. In 1857, the Matrimonial Causes Act of England created a secular court that would hear matrimonial causes such as divorce and had the jurisdiction to grant divorce a vinculo. At this juncture, parties could be civilly remarried even while their religious marriage, which could not be dissolved according to canon law, persisted/"

31. Thereafter the effect of this operation - state-sanctioned civil remarriage following a secular divorce a vinculo despite the persistence of religious marriage that forbade divorce a vinculo - was that religious marriage simpliciter was regarded as generating a civil nullity.

22 Marriage Act, 1836 (Imp.), c 85, in ibid 23 Ibid

24 Report of the Special Joint Committee of the Senate and House of Commons on Divorce (Ottawa, Canada: R. Duhamel, Imprimeur de la Reine, 1967).

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32. While religious officiants, following the conjunction of the Marriage Act of 1836 and the Matrimonial Causes Act of 1857, inaugurate valid civil marriages with consequences in secular law, this possibility flows from the officiant being legislatively endowed with a bureaucratic function as a civil servant for the purposes of inaugurating a civil marriage when they perform the religious service. The religious marriage itself, without this enabling authority, has no civil import on its own.

33. By the means of the introduction of secular courts granting civil divorce a vinculo, the co-existence of religious marriage and civil marriage simultaneously to two different spouses did not constitute bigamy: the religious marriage was transformed into a nullity. Ecclesiastical courts might continue to concern themselves with the co-existence of a religious marriage to one party and a civil marriage to another; secular courts, which were granted exclusive jurisdiction over the dissolution of civil marriage in 1857 in England, concerned themselves only with the co-existence of a civil marriage to one party and a civil marriage to another. Religious marriage became a private matter without concern for the state.

34. Canada permitted both divorce by Parliamentary decree as well as divorce by secular court prior to and following confederation. Pre-confederation English colonies received English common law, including statutory revisions up to confederation - a state that continued post-confederation via the mechanism of section 129 of the Constitution Act, 1867 - unless modified by colonial statute post-reception.

35. The Maritime provinces, prior to confederation, passed Matrimonial Causes legislation which allowed for secular divorce and remarriage within civil (nonecclesiastical) courts before England provided a secular divorce jurisdiction in the 1857 Act. Nova Scotia legislated secular divorce a vinculo in 1758; New Brunswick in 1791.2s

36. Section 129 of the Constitution Act, 1867 permitted these provincial divorce laws to continue post-Confederation by providing that the laws in force in 1867 and all the

2S Ibid

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courts of civil and. criminal jurisdiction should continue in Ontario, Quebec, Nova Scotia, and New Brunswick. 26

37. The Western provinces and territories received English law following the 1857 Matrimonial Causes Act and consequently entered confederation with secular judicial divorce in place.

38. As Ontario's reception statutes predated the 1857 English Divorce Act, after 1867 Ontario residents directed their petitions to Parliament in Ottawa until the federal Divorce Act (Ontario) of 1930 created the possibility for Ontario residents to divorce judicially.

39. Quebec and Newfoundland never had secular divorce courts and, until the federal Divorce Act of 1965, residents of these two provinces were constrained to seek divorce by way of private Act of Parliament, the latter of which had been another means of effecting a divorce a vinculo since the time that each province joined confederation.

40. The federal Divorce Act (Ontario) of 1930 was repealed by the 1968 federal Divorce Act, which created the first nation-wide judicial jurisdiction for divorce a vinculo. In 1985 the federal government amended the Divorce Act and introduced ''nofault" divorce, in which judicial divorce can be granted on the establishment of one ground, breakdown of the marriage, which is established by separation for a one-year period or adultery or cruelty.

41. As a result of the same legislation, or type of legislation, that in England as of 1857 rendered religious marriage a nullity so that civil remarriage upon divorce a vinculo could proceed, Canada entered Confederation with religious marriages treated as nullities in the civil law for most provinces (including those which entered confederation post- 1867).

26 Ibid

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42. Canada followed the pluralism of marriage formation. Provincial marriage statutes enable registered religious officiants to both inaugurate the beginning of a religiously governed marriage as well as a civilly governed marriage with all of the incidents of the latter institution. Only the civil component of a marriage authorized to be performed by a religious officiant has civil effect; the attendant religious marriage is merely symbolic in the eyes of the state and has no civil effects other than those that arise by virtue of cohabitation.

43. If religious marriages are not read as nullities in civil law, Catholics with indissoluble canon law marriages and Jewish women bound in religious marriage by husbands who refuse to provide a religious document of divorce would be incapable of remarrying civilly after a civil divorce, as their persisting religious marriage would be a lawful impediment to civil marriage because it would create a bigamous marriage out of civil remarriage.

Christian Basis 0/ Marriage Law

44. The federal government passed a marriage statute in 2005 that speaks only to civil, not religious marriage: the Civil Marriage Act, 2005, c. 33, C-31.5. The core, and brief, section of the 2005 Civil Marriage Act is section 2: "Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."

45. The common law definition of marriage that prevailed from confederation until superceded by the Civil Marriage Act is contained in the 1866 case of Hyde v. Hyde and Woodmansee [L.R.] 1 P. & D. 130. The religious thrust of that prevailing definition is found in the words of Lord Penzance (emphasis added):

The position or status of "husband" and "wife" is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite lights upon their offspring. What,then, is the nature of this

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institution as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

Adultery as a Criminal Offense and Tort

46. Adultery has never been a criminal offence in England.

47. With the spread of Christianity in England in the 8th and 9th centuries, adultery became a sin explicitly prohibited in the central law codes of the 10th to 12th centuries. It was dealt with in the ecclesiastical courts as a wrong against monogamy following the Norman invasion of 1066.27

48. Common law remedies (in the common law courts) for a husband whose wife had sexual intercourse with a third party did not encompass adultery until the actions for enticement and harbouring were derived by analogy from the 1349 Statute of Labourers, 23 Edw. 3 and expanded for the husband's loss of his wife's services in 1619. From this was born the tort of criminal conversation, which allowed the husband (and only the husband) an action for loss of consortium against the party with whom his wife committed adultery.28 As head of the family, the husband was considered to have a right to the services of his wife and could therefore maintain an action for the loss of his wife's services, including sexual, against a marital interloper.

49. In England the House of Lords held as late as 1952 that at common law women did not have a corresponding right of action to the loss of their husband's consortium in the case of Best v. Samuel Fox Co. Ltd, [1952] 1 AC. 716 (H.L.).

27 Jeremy Weinstein, "Adultery, Law, and the. State: A History", 38 Hastings LJ. 195 1986-87. 28 Ibid at 216.

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21..

50. Criminal conversation was also a component of divorce prior to England's 1857 Divorce and Matrimonial Causes Act, 20 & 21 Viet., c. 85: a party wishing to secure a divorce a mensa et thoro (from bed and board) had to begin in the ecclesiastical courts and succeed there in the tort for criminal conversation before applying for a divorce a vinculo (from the bonds of marriage) in the House ofLords.29

51. By 1857, criminal conversation had grown into a remedy that could be brought

for damages alone in the common law courts."

52. England abolished criminal conversation in 1857 but permitted to the husband a statutory action in damages against the marital interloper thereafter to claim damages from the adulterer in a petition for divorce or judicial separation or in an action limited to damages alone."

53. Those provinces such as British Columbia that received the English Matrimonial Causes Act of 1857 received also the limitation of the action to husbands by that legislation; as the distinction between the sexes evolved under the common law those provinces whose dates of reception of English preceded the Matrimonial Causes Act also retained the distinctive treatment of each sex.

54. In the late 1970s, many common law provinces abolished criminal conversation through family law reform acts. For example, British Columbia explicitly abolished the remedy of criminal conversation in its 1978 Family Relations Act; in the case of Skinner v. Allen (1977), 18 O.R (2d) 3 (C.A.). it was held that Ontario implicitly abolished criminal conversation by family law legislation that provided that both spouses had legal personalities independent, separate and distinct from each other, and that a married person should have the same legal capacity as a single person. Proprietary interests of one spouse in their partner were thereby abolished.

29 Margaret Woodhouse, "The Marriage and Divorce Bill of 1857" 1959, The American Journal of Legal History, vol. 3 at 260-61; and Sybil Wolfram, "Divorce in England, 1700-1857" 5 Oxford J. Legal Stud. 155 (1985) at 172.

30 Supra note 27.

31 "Report on Family Law, Part I: Torts" Ontario Law Reform Commission, 1969 at 88.

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55. With the exception of a pre-Confederation statute in New Brunswick that survived post-confederation via section 129 of the Constitution Act, 1867 (apparently until section 9(c) of the Criminal Code was enacted by S.C., 1953-54, c. 51, s. 8), adultery has never been a criminal offence in Canada.

Conjugal Union, Cohabitation and Adultery Under the Polygamy Section

56. Until the 1954 Amendment to the Criminal Code's polygamy section,32 the Code held liable "[e]veryone ... who lives, cohabits, or agrees to live or cohabit, in any kind of conjugal union with a person who is married to another, or with a person who lives or cohabits with another or others in any kind of conjugal union."

57. As noted in paragraph 22, the Labrie decision read "conjugal union" to mean "some form of contract between the parties, which they might suppose to be binding on them." Conjugal unions were not formed on the basis of cohabitation alone. No offence was committed between the parties where there was no form of contract.

58. In The Queen v, Liston (unreported) (hereinafter Liston), tried at the Toronto Assizes in 1893, Chief Justice Armour held that section 278 of the 1892 Criminal Code (the predecessor to the current s. 293), which included the emphasis on Mormon polygamy of the 1890 Act respecting Offencesrelating to the Law of Marriage, ''was intended to apply only to Mormons.,,33 From Raney's note on the unreported case, Liston was a case where the accused was in an adulterous relationship, unformalized by law.

59. Despite the rulings in Liston and Labrie relating to cohabitation, John Harris was convicted in a lower court decision in Quebec under the part of the polygamy section that refers to cohabitation and conjugal union: The King v. John Harris (1906) 11 C.C.C.

32 Criminal Code, S.C. 1953-54, c. 51, s. 243

33 W.E. Raney, "Bigamy and Divorces" 34 Can. L.1. (N.S.) 545 (1898).

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(Que. C.S.P.) (hereinafter Harris). Harris cohabited for six months with a woman who was married, apparently believing her to have secured a divorce. The judge held that "if [the sub-section relating to cohabitation and conjugal union] means anything at all [it] is meant to apply to just such a case as this, where the parties are living together in open continuous adultery to the scandal of the public. " John Harris was only one of two accused on record as having been convicted under Canada's polygamy section since its 1890 inception.

60. With the same Criminal Code wording relating to conjugal union and cohabitation as the original 1890 Act still in place, the Ontario Court of Appeal in 1937 confirmed the understanding of conjugal union and cohabitation in the polygamy section that had been invoked in Liston and Labrie. In R. v. Tolhurst & Wright [1937] 3. D.L.R. 808 (Ont C.A.) (hereinafter Tolhurst), both of the accused were cohabiting for a sufficiently long duration that they had four children together. Both were married to other parties. Although he found that Tolhurst and Wright had. been cohabiting "as husband and wife", Chief Justice Rowell also found that "[t]he crucial words of [the subsection] are "any kind of conjugal union"; these words predicate some form of union under the guise of marriage, and Parliament had no intention in this section of the Code of dealing with the question of adultery." (Italics added). Cohabitation alone, without some form of intentional act that binds the parties contractually, does not meet the criteria of conjugal union set out in the polygamy section. Further, adultery is consistent with monogamy.

61. Sections 275 (a) and (b) of the offence of Bigamy, which were in force at the time that Labrie, Liston, and Tolhurst were charged with and acquitted of polygamy, stated that "Bigamy is (a) the act of a person who, being married, goes through a form of marriage with another person in any part of the world; (b) the act of a person who goes through a form of marriage in any part of the world with any person whom he or she knows to be married."

62. To substantiate the claim that "conjugal union" must refer to some form of contract binding the parties, and underlining a Mormon-specific intent of the legislation,

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Rowell J. emphasized that "[t]he section is headed "Polygamy and Spiritual Marriages", and it was originally enacted by 53 Vict., ch. 37, sec. 11, as an amendment to An Act Respecting Offences Relating to the Law of Marriage; it is said to have followed the Edmunds Law in the United States, and was aimed at prohibition of polygamy under any

guise."

63. "Spiritual Marriage" is the phrase used by Mormons to describe their religious

mamages.

64. Judge Rowell was not correct about the section heading of the polygamy offence and its subsections. Section 310(b) of the Criminal Code, R.S.C. 1927, c. 36, which was the subject of Tolhurst, was headed "Cohabitation in conjugal union" and read: "Every one is guilty of an indictable offence and liable to imprisonment for five years, and to a fine of five hundred dollars ... (b) who lives, cohabits, or agrees or consents to live or cohabit in any kind of conjugal union with a person who is married to another or with a person who lives or cohabits with another or others in any kind of conjugal union." The heading "Spiritual marriage" was specific to paragraph 310(a)(iii) and did not applied to the whole of s. 310. The heading of the overall polygamy section in 1937 was "Offences against Conjugal Rights".

65. Until the charges brought against two Mormons in the community of Bountiful in 2009, the 1937 Tolhurst case was the last prosecution under the polygamy section of the Criminal Code.

66. Mel Lastman was the mayor of Toronto from 1997 to 2003. He was civilly married in 1949. While married civilly he carried on a fourteen-year relationship with a married woman whom he had intimate relations with on a regular basis, spoke with on a regular basis, traveled with (staying in motels and resorts around the world), and with whom he shared comfort, care, and intimate confidence (the woman having made herself available to him for emotional support and affection). He had two children with this

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woman.34 Under the definition of "conjugal union" in Labrie, Liston, and Tolhurst - "some form of union under the guise of marriage" or "some form of contract between the parties, which they might suppose to be binding on them" - former Mayor Lastman would not have been liable to criminal charges in the polygamy section.

67. The polygamy offense has had a subsection from its first promulgation in the 1890 Act respecting Offences relating to the Law of Marriage through to the most recent amendment of the section in Criminal Code (as amended to March 19,2010) that relates to conjugal union simpliciter. The wording of this section has been identical in all of the amendments to this polygamy section from the 1890 Act through to the current Criminal Code. This section (currently s.293(1)(ii» holds liable "everyone who ... enters into ... any kind of conjugal union with more than one person at the same time".

68. There has been only one conviction (see infra para 77) - and, from the known record, only one prosecution before the charges laid against Winston Blackmore and James Oler - under this subsection of the criminal code. The convict was an Aboriginal man, as discussed further in the next section.

Aboriginal People and Polygamy

69. The original bill containing the criminal prohibition on polygamy proposed that "this section shall not apply to any Indian belonging to a tribe or band among whom polygamy is not contrary to law, nor to any person not a subject of her Majesty, and not resident in Canada".3S This provision was struck out. One senator explained in the senate debate on the issue: "I think that is a very dangerous exception to make, because it may have the effect of excepting the very class to whom the Bill is intended to apply. ,,36

34 Louis v.Lastman (2001),18 R.F.L. (5~ 311 (Ont. Sup. Ct. J.).

35 Bill F, An Act to amend "An Act respecting Offences relating to the Law of Marriage", 4th Session, (/h ParI. 1890

36 Supra note 14 at 85

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2\

70. Missionaries, throughout the British Empire, dedicated themselves to eradicating polygamy as a family structure; they were also vexed by the implications for the wives that indigenous men were to abandon as they abandoned the practice - a condition of their conversions to Christianity. Missionaries in Western Canada had similar difficulties reconciling their conviction that polygamy was uncivilized with the implications for wives that were to be abandoned."

71. The missionary efforts to convert Aboriginal people to the dominant religion of Canada, Christianity, were part of a larger coercive colonial project intended to "civilize" Aboriginal populations that included residential schools/" The Department of Indian Affairs circulated a memo in 1882 in which husbands were not permitted to draw annuities from the federal government for more than one wife. Indian Superintendent J.F. Graham wrote in a departmental circular that "there is no valid reason for perpetuating polygamy by encouraging its continuance in admitting any further accessions to the number already existing, and I. .. instruct you not to recognize any additional transgressions by allowing more husband to draw annuities for more than their legal wives.,,39

72. By the 1890s the Department of Indian Affairs was threatening to "depose" chiefs

if they questioned or opposed state policies on matters involving immorality.t"

73. Parliament intervened in legislatively suppressing Aboriginal polygamy in the 1890s. While the expense of annuities for multiple wives was a concern, the more pressing reason was the arrival of the Mormons in Western Canada. The Mormons settled next to an Aboriginal community where polygamy was relatively common. Mormons, who had come to Canada also as missionaries to the Indians, would undermine efforts to convert the indigenous population to monogamous Christianity. Catholic Bishop Vital Grandin of st. Albert traveled to Ottawa in the summer of 1890 to make representations

37 Supra, note 14 at 195

38 Supra note 14 at 195 et seq. 39 Supra note 14 at 200.

40 Supra note 14 at 206.

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to the government "regarding the probable bad moral effect which the presence of the Mormons will necessarily have on the Blood Indians whose reserve is close to the Mormon colony.'.41 Another Catholic missionary wrote; "What a pernicious influence is exercised on the infidels through these people, supposedly Christians.,.42

74. With the 1890 Act respecting Offences relating to the Law of Marriage that created the polygamy offense, officials from the Department of Indian Affairs began to add the threat of criminal sanctions to the suspension of annuities in their efforts to suppress Aboriginal polygamy. In 1893, a circular letter from the Department asked Indian agents in Western Canada to report on the state of polygamy in their agencies and they were asked to fully explain the law on the subject to reserve residents.43

75. The case of R. v. Nan-E-Quis-A-Ka (1889), 1 Terr. L. R. 211 had laid out the meaning of "Indian marriage": "neither law, custom nor religion has affixed to it any conditions or limitations or forms other than what nature has itself prescribed ... Wherever marriage is governed by no statute consent constitutes marriage and that consent is shewn by living together."

76. Despite the rulings in Labrie and Liston to the effect that cohabitation alone would not constitute polygamy and "conjugal union" meant "some form of contract between the parties, which they might suppose to be binding on them", the Department of Indian Affairs drafted a legal opinion that accounted for this structure of Aboriginal customary marriage which was indistinguishable from cohabitation. The Deputy Minister of Justice and Solicitor of Indian Affairs advised in 1895 that, "Even if there has been no valid marriage, but the Indian intended by complying with the customs of the band relating to marriage to make both or all the women his wives, or if, even without such intention he has complied in the case of two or more of the women with the requirements

41 Supra note 14at 204. 42 Supra note 14 at 205. 43 Supra note 14 at 207

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of the tribal customs, I am inclined to think that he may be successfully prosecuted under Sec 278 of the Criminal Code ... ".44

77. Apart from John Harris in 1906 (Harris) (see supra para 59), the only other person convicted under the polygamy section since it was promulgated in 1890 was a Kainai Aboriginal man from Western Canada: R. v. Bear's Shin Bone (1899),4 Terr. L. R. 173.

Shifting Meaning of Conjugal Union

78. From the first drafting of the polygamy offense until the current Criminal Code, the section has had a subsection that holds liable everyone who enters into "Any kind of conjugal union with more than one person at the same time. ,,45

79. The understanding in Labrie, Liston and Tolhurst that "conjugal union" in the polygamy section meant a contractual agreement to live under the guise of marriage was underlined in the Ontario Court of Appeal decision R. v. Eastman [1932] 0.1. No. 236 (hereinafter Eastman). This case also involved a cohabiting couple, the female partner of which was married to another man. The charges against the mother related to causing a child to be in danger of becoming immoral or rendering the home of a child an unfit place for a child. Judge Sedgwick held that, with respect to the subsection of the polygamy section referring to cohabitation "in any kind of a conjugal union", this section applies "only in the case of some sort of contract to live together, and not to a living together of one person with a married person of the opposite sex without any such contract."

80. There is no evidence in Hansard or in the legislative records that Parliament turned its attention to a substantive modification of the phrase "conjugal union" in the polygamy section.46

44 Supra note 14 at 209.

45 Section 293 (a)(a)(ii) Criminal Code; Legislative History Brief - Submitted by the Attorneys General of British Columbia and Canada, No. S-097767.

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81. While "conjugal union" is not defined in the Criminal Code nor in other statutes that use the phrase, the contractual and voluntaristic definition provided in Labrie, Liston, Eastman, and Tolhurst dominated jurisprudence in other federal and provincial statutes that used the phrase until the 1980s. Prior to that period, the focus of inquiry as to whether a "conjugal union" exists was based on the subjective intentions of the parties to a non-marital relationship."

82. The subjective, contractualist, voluntarist understanding of "conjugal union" in statutes where it was invoked did not give way to an approach based on objective criteria until the 1980s. The search for functional equivalents to marriage to describe "conjugal union" throughout statutes in which the phrase is used is found in the leading family law case of Molodowich v. Penttinen (1980), 17 R.F.L (2d) 376. For family law, the Molodowich case consolidates the relevant functional attributes under seven headings in order to determine whether marriage-like cohabitation, or conjugality, exists: 1) shelter; 2) sexual and personal behaviour; 3) services; 4) social; 5) societal perceptions of the couple; 6) economic support; and 7) children. Under each heading are a detailed set of inquiries.

83. The functional equivalence criteria for "conjugal union" set out in the family law jurisprudence, apart from post-dating the 1954 omnibus by a quarter of a century, conflicts with the definition of "conjugal union" in the polygamy jurisprudence.

84. None of the criteria set up by the Molodovich test are essential. Legal scholars have pointed out how ambiguous and indeterminate the Molodovtch criteria are for the purposes of defining "conjugal union" in family law.48

46 Ibid.

47 Brenda Cossman & Bruce Ryder, "What is Marriage-Like? The Irrelevance of Conjugality", 18 Can. J. Fum. L. 269 (2001) at 283.

48 Ibid

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0\

85. On the definition of conjugal union provided in Molodavich, Toronto Mayor Mel Lastman likely would have been liable to charges of polygamy WIder section 293 (l)(a)(ii) having entered into a conjugal union with more than one person at the same time.

Polyamory and Polyfulelity

86. Legal scholars have distinguished "post-modem" polygamy (also known as polyamory or polyfidelity) from patriarchal polygamy.49 Postmodem polygamy has been construed as a form of commitment which is flexible and responsive to the needs and interest of the individuals involved, rather than a rigid institution with hierarchical gender norms embedded within it. It differs from patriarchal polygamy in the composition of the parties; for example, it could be constituted by one woman with several male partners or by permutations of same-sex or bisexual relationships.i"

87. Postmodem polygamy tends to endorse "sex positive" views of intimate human relationships; i.e., it puts a high value on sexual relations." For some, sex is viewed as "sacred" or as a "form of worship" - an important way of connecting to someone with whom one has a relationship as well as a way of meeting individual interest in and need for sex. 52 This view of sex extends equally to male and female sexuality.

88. Postmodem polyfidelity in particular - in which each member of the group is in a primary relationship with and views themselves as married to every other member of the group - is a practice that, in general, seeks to promote greater individual growth possibilities provided by multi-partner relationships, as well as a relationship form more conducive to egalitarian, non-sexist relationships. 53

49 Maura r. Strassberg, "The Challenge of Post-modem Polygamy: Considering Polyamory" 3 I Cap. U. L. Rev. 439 (2003).

so Ibid at 44 1.

51 Ibid at 453.

52 Ibid at 453.

53 Ibid at 463

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89. In the 1982 case. of R. v. Mason, 59 C.C.C. (2d) 461, the Ontario Provincial Court held that "swinging" parties - in which spouses swap sexual partners with each other, in private non-commercial settings - do not constitute an indecent act for the purposes of the Criminal Code. Spouses can freely invite other sexual partners into their homes for the pleasure of either or both.

90. In 2005 the Supreme Court of Canada in R. v. Labaye [2005] 3. S. C. R. 728 (hereinafter Labaye) heard charges against an accused who operated a club in Montreal, the purpose of which was to permit spousal couples and single people to meet each other for group sex. Lahaye was charged with keeping a common bawdy-house under section 210(1) of the Criminal Code. The offence of keeping a common bawdy-house is defined by reference to the concept of "indecency". The concept of "harm" is at the centre of the mischief of indecency.

91. In upholding the acquittal of the accused, the Supreme Court of Canada held that the Crown had failed to establish that any harm had been committed, the threshold for which was set by determining whether the conduct confronts the public with behaviour that interferes with the autonomy and liberty of citizens, pre-disposes others to anti-social behaviour, or physically or psychologically harms the people involved in the conduct. The harm also needs to be incompatible with the proper functioning of society.

92. In the case of swinging, insofar as the activity was taking place in a private setting, the threshold of harm was not met. The privacy, behind which group sex was veiled, eliminated potential harm to the liberty rights of other citizens through confrontation. It also eliminated fears about the fostering of anti-social behaviour in others, which "can arise only if members of the public may be exposed to the conduct or material in question."

93. On the question of whether swinging is incompatible with the proper functioning of society, the court also invoked the privacy of the behaviour to inoculate the activity

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from posing a risk of harm to society's proper functioning: "Vague generalizations that the sexual conduct at issue will lead to attitudinal changes and hence anti-social behaviour will not suffice. ,,54

Patriarchy Within the Monogamous Family

94. Both the ecclesiastical offence and the independent tort of criminal conversation had a historically embedded asymmetry built into it. That asymmetry was founded on the view that married women were their husbands' property and upon the eradication of married women's legal personality upon marriage, which precluded women from suing without the joinder and permission of their husbands to the suit. As a result of these constructions only husbands were entitled to sue for criminal conversation.f

95. It was not until the 1970s (twenty years after the 1954 omnibus amendment to the polygamy section) that provincial legislation began to abolish the tort of criminal conversation. As stated in the "Report on Family Law; Part I: Torts" by the Ontario Law Reform Commission, 1969:

[criminal conversation was] was founded on the assumption that the husband had a kind of property interest in his wife. It would, of course, be possible to make available to the wife all the remedies that a husband now has. However, giving both husband and wife equal benefit of what are ... uncivilized, unworkable and outmoded laws is no reform. The solution is to abolish these laws so that neither had the benefit of them. 56

96. Prior to the English Matrimonial Causes Act of 1857, an application to Parliament for a private member's bill for divorce had to be preceded by a grant from the ecclesiastical courts for a divorce a mensa et thoro. The latter courts granted mensa et thoro divorces on the proof of criminal conversation, an offense that was only available

54 Labaye, at para 58. 55 Supra, note 31 at 88. 56 At 97

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3L\

to the husband. This generated a double standard for husbands and wives whereby only

men could seek a divorce on the grounds of adultery. 57

97. This perception that a wife's adultery was a more serious offense than a husband's was perpetuated by the Matrimonial Causes Act, such that thereafter on an application for ajudicial divorce a wife's adultery was sufficient cause to end a marriage but a woman could divorce her husband only if his adultery had been compounded by another matrimonial offense, to wit: i) incestuous adultery; ii) bigamy with adultery; iii) rape, sodomy or bestiality; iv) adultery couple with such cruelty as would have entitled her to a divorce a mensa et thoro; or v) adultery coupled with desertion for two years or longer without reasonable excuse. 58

98. In Canada at the time that the polygamy section was inserted into federal legislation, this double-standard for men and women was in place for both judicial divorce in those provinces that allowed for it and for Parliamentary divorce. 59

99. This double-standard was removed in Canada in 1925 (35 years after the polygamy section was created) when the Parliament of Canada exercised for the first time its general legislative jurisdiction over marriage and divorce. By the Marriage and Divorce Act of that year a wife could sue for divorce on the ground of her husband's adultery alone. This Act applied only in those provinces where the courts had power to grant divorces a vinculo, but the same principle was followed in parliamentary divorce/"

100. The case of Orford v. Orford (1921), 58 D.L.R. 251 (Ont. S.C.) discussed the common law meaning of adultery. The issue before the court was whether artificial insemination, without consent of the husband, constituted adultery. It was held that:

57 Ann Sumner Holmes, "The Double Standard in the English Divorce Laws, 1857-1923",20 Law & Soc. Inquiry601 (1995) at 601.

58 Ibid at 52

59 "Report of the Special Joint Committee of the Senate and House of Commons on Divorce" June 1967 at 47-53.

60 Ibid at 52.

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In its essence, adultery was always regarded as an invasion of the marital rights of the husband or the wife. When the incontinence was that of the wife, the offence which she had committed rested upon deeper and more vital ground than that she had merely committed an act of moral turpitude, or had even seen fit to give to another man something to which her husband alone was entitled. The marriage-tie had for its primary object the perpetuation of the human race. For example, the Church of England marriage-service, which in this respect may well serve as the voice of the Ecclesiastical Courts of England, gives as the first of "the causes for which matrimony was ordained" that of ''the procreation of children." ... [T]he essence of the offense of adultery consists, not in the moral turpitude of the act of sexual intercourse, but in the voluntary surrender to another person of the reproductive powers or faculties of the guilty person.

101. This definition of adultery was modified by the 2005 case of S.E.P. v. D.D.P. (2005), 259 D.L.R. (4th) 358, which took into account sexual acts outside of marriage with a person of the same sex.

102. From the mid to late 19th century, common law colonies and provinces in the British territories in North America and in Canada passed Married Women's Property Acts, which dissolved the regime of community of property that had prevailed in English law prior to that juncture. This was a regime that was structured by the doctrine of coverture, whereby married women forfeited all property and income that they owned or earned to their husbands upon marriage and which also removed their capacity to enter contracts or to sue in their own names."

103. Much like the judicial treatment of the polygamy section, which read down the language of the section such that adultery was excluded and only Mormon and Aboriginal polygamy prosecuted, the Married Women's Property Acts of the 19th century were regularly read down by a patriarchal judiciary that contorted the plain language of those Acts in order that the hierarchical relationship of patriarchal monogamy be preserved. Legislatures had to intervene several times to redraft legislation that had been

61 Constance Backhouse, "Married Women's Property Law in Nineteenth-Century Canada", 6 Law & Hist. Rev. 211 (1988).

-27 -

judicially eviscerated by judges who deliberately embarked upon a campaign of statutory nullification. It was not until the end of the 19th centur y that successive legislative amendments put an end to judicial foot-draggingf''

104. Quebec entered Confederation in 1866 with the community of property regime structured into the Civil Code of Lower Canada, accompanied by broad capacity for the parties to contract out of this default regime. Under civil community of property the husband was the head of the household and all assets, regardless of their provenance, belonged to him. This regime remained in place until the Civil Code of Quebec (1980) replaced the default regime of community of property with a default of partnership of acquests (in which a broad range of assets acquired over the course of the marriage are divided equally between the spouses upon dissolution of the marriage and which can be contracted out of) coupled. with the institution of family patrimony (rights in which cannot be renounced in a marriage contract).63

105. Under the separate property regime adopted in common law provinces in the late 19th century, each spouse was entitled, upon dissolution of the marriage, to whatever property they had title to and to their separate incomes. Given the sociological discrepancy between men and women, particularly married men and women, with respect to the acquisition of property over the course of a marriage and earning capacity, married women found themselves deeply impoverished upon dissolution of marriage. This was so particularly in a long-term traditional marriage during which the wife worked, unremunerated, inside the home doing child care and domestic work while the husband worked for an income and held sole title to property that had been jointly acquired by virtue of the wife's unpaid domestic work. In the 1992 Supreme Court Case of Moge v. Moge, [1992] 3 S.C.R. 813 (hereinafter Moge), Madame Justice L'Heureux Dube took judicial notice of this phenomenon, which she called the feminization of poverty.

62 Ibid

63 J.-M. Brisson & N. Kasirer, "The Married Woman in Ascendance, the Mother COuntry in Retreat: From Legal Colonialism to Legal Nationalism in Quebec Matrimonial Law Reform, 1866-1991" (1996) 23 Man. LJ. 406.

-28 -

106. The inequities produced by Married Women's Property Acts and by the community of property regime in Quebec (which was coupled with liberal possibilities for contracting out) were not remedied until the prejudice to women's interests of patriarchal monogamy cattle to the Supreme Court of Canada in the 1975, twenty years after the omnibus amendment to the polygamy section in 1954. In Murdoch v. Murdoch, [1975] 1 S.C.R. 423, the wife of an Albertan farmer submitted a claim for half the interest in the family ranch that was registered under the husband's name. The question put before the Court was whether there was an implied trust on behalf of the wife for all her years of labour on the farm. The Court upheld the trial judge's finding that the wife's labour was not beyond what was normally expected of a ranch wife and that since there was no direct financial contribution to the farm either, the wife, had no trust interest in it.

107. Swiftly after the Murdoch case, legislation in the common law provinces created default regimes whereby family assets would be divided equally upon dissolution of marriage with a legislatively constrained capacity of the parties to contract out of the default via domestic contracts.

108. It was not until the 1980 case of Pettkus v. Becker, [1980] 2 S.C.R. 834 that the doctrine of unjust enrichment and constructive trust was expanded to apply to cohabitational relationships between men and women in which the female partner contributed unremunerated domestic work and child care while the male partner worked outside the home for an income.

109. Married women in Quebec did not acquire the right to contract independently of their husbands until 1964 when the Civil Code was amended - ten years after the omnibus amendment to the 1954 Criminal Code.64

110. As one aspect of the structure of patriarchal monogamy, the female partner of the relationship overwhelmingly tended to be the party who contributed unremunerated childcare and domestic work to the partnership while her male counterpart provided an

64 Ibid

-29 -

income through work outside of the home in the marketplace. As a result of this structural gender arrangement, when the relationship dissolved on divorce or separation the female partner had limited prospects for successfully entering the paid labour market and maintaining the standard of living to which she had previously contributed through her unpaid labour.

111. It was not until the 1992 Moge decision at the Supreme Court of Canada - more than 30 years after the omnibus amendment of the 1954 Criminal Code - that the prejudice to women's interests deriving from patriarchal monogamy was remedied with a construction of spousal support that recognized the unpaid contribution of women to the family income.

112. Canada has criminalized aspects of patriarchy that are present in family relations through a limited number of interventions, such as the removal of the marital rape defense in 1983, a robust extension of criminal assault laws to include domestic assault, and the creation of provisions relating to sexual interference and sexual exploitation. For the most part, patriarchy within the family has been remedied by family law legislation and case law and almost all of these remedies arise upon the dissolution of the marriage or relationship. The marriage itself remains a black box in which parties are at liberty to continue organizing their relationship according to patriarchal principles.

317

PolygamY- s Inscrutable Criminal Miscbief

SUSAN G. DRUMMOND *

The polygamy charges tilld in the setttementof BountifLl~.8ritish Columbia..in JatlllClry 2009. give rise to que$.tionubout the particl,ltilr miscllief of the polygamy offence in section 293 of Canadll'$ Crimin;t.l CQde, This IIrticle argues that. as a result of developments within related areas oflawipolygamy's mischiafunder the cun:ent wording I)fthe ~I)n 15 virtually inscrutabl.e. Whtnu~. this 5f!Cljon ha$princ:iPldl)/lIetVf!d as amecha.nlsm to discipline $0- claUy andPQl1!itllUy mal'llinaliMd grQups.Oevelepmelltsin family law over the. last forty ye<lrs naV$ 911nerateda host of exceptions totheappUcation of the J!<!lygemy section, including relig10us marriage, unmarried eohatlitlltlon. and adulte.rous relatllln5hip$. Furthermore, the wording of the potY9amy section hinges IlpGn a key concept-eonjugalltrwhldlderivesits.meaning fromfllmi~y !$w. and,in this domein. the concept of conjugality has deg«neratedtc the point elf unlntlll.Ugibility •. As a result, the targeted.harm in thepol>'Siamy provision is. rendered vague. In lUi jurisprudential Ind$Ol;I.l context, ~on m is unconstitutional under $llction 7 or the Clilliltfbm Chartf#r 0/ Rights IIn.d FreJH!Dms,and the provision should bedec:lared void.for Yaguenil$$. The article presents alternatives to the crlmlnalizatio.n ofpolyga~ in order to address COOcernsallQtittile vulnerabilities of women lind c:hlldrenllving within oppre$sivept,llyglimousretBthmships.

Les accusations dePQlyglllTlie portees en jllnvier2009dans le reglement de II cause BountiM. en Colomhie-Sritlll1nique. 50ulllvent des questions sur l'jnfl"acti(ltl .partfcutiere du mi!;sit de la polygamia an'lertu de l'article 293 du Code criminal du Canada. Cat article !;sit valeir qu'jj ta suite da divi!loppements intervenus dans des domaines Uisis ta ltlgi$tion. le mefait de lapolygamie en vertu dulibette aaual~erlrtic:le est 'Ilrt!JeUement impossible Is definir. Lorsqu'on yrec:ourt, eet artf!:!e a !lS$eotieUemi!nt seM de mecanisme visant iI prendt'!! des mesUresdh,c1pUnail'll$envers desgfOupesmarginalisl$ allX plans social et potitique.Les develeppemellts en droit de la fIlmilleau tours des quarante dernieres an-

ArIoc:iateProbor. 01g00dc. Hall law SchooL 1 wi$h w~mygratitude to Professol$ Bru~RyIk.r. Maty Jane Mossman, and AngdaCantpbd.lror~.d#Jed Ulmmenwy and~QI1ancatlicr~.ofthisart:icle.lam.A1sOgmclWtomyc:olle:aguesat o.pde Hall Law ~ m~1lIlfl1&Ing with aprelCl1llldon ofche.rode at a, ~ty ~andpt9Vldingstimulatingdeban: on metopic. ps:or-r Jamie Cuncmn provided an ~ fiMc:d!tori:al ~ of the anide. and this wu fol.Iowedbythe.$CNpulou$ editorial a4vic:c ofp.tofi:aor Benjamin Ridwdson.and che OspdeHalllaw Joumal', EcIltotialBoard.ltlJ.n-.al p~ to have $lIChanentil'Cand ptofcssion.al m.deu.

1.--\0

3t8 (2009]47 OSGOODE HAll LAW JOURNAL

nees ont engendli une myriade d'exceptions quant a l'application de rarticLe sur la polygamie, y compris le mariage religieux, runion de fait et Les relations adulbkes, En outre, Le libelle de l'article sur la polygamie s'articule autour d'un concept de - le lien conjugal- qui tire sa signification du droit de la famiUe et, en ce domaine, ee concept du lien conjugal a degenere jusqu'au point de l'inintelligibilite. Par consequent, Le prejudice cible par la disposition sur La polygamie est devenu vague. Dans son contexte jurisprudentieL et social. l'article 293 est inconstitutionneL en vertu de l'artide 7 de La Charte canadienne des droits et libertes, et la disposition devrait etre declanie nuUe en raison de son imprecision. L'articLe presente des solutions de rechange a la criminalisation de La poLygamie, afin d'aborder les preoccupations relatives a la vulnerabilite des femmes et des enfants qui vivent au sein de relations polygames abusives.

I. CHARTER TROUBLE: VOID FOR VAGUENESS 324

II. CIVIL VULNERABILITIES AND STANDARDLESS SWEEPS 329

III. FAMILY LAWS SUBSTRAtUM OF VALUES 334

IV. ADULTERY AND UNMARRIED COHABITATION 344

V. SEXUAL MISCHIEF 347

VI. CONJUGAL UNIONS 350

VII. VOID FOR VAGUENESS 357

VIII. RESIDUAL PURPOSES 359

IX. CONCLUSION 367

THE LEGAL HISTORy1 PRECEDING the polygamy charges2 that were laid in the settlement of Bountiful. British Columbia, against two men-e-both members and leaders of the Fundamentalist Church of JesU$ Christ of the Latter Day Saints (FLDSHn January 2009. have already stimulated a re-evaluation of how Canada conceives. and should conceive. legitimate intimacy and the legitimate f.unily, The fact that the charges were dropped on 23 September 200Heaving the men free to go-has left a puzzling disjuncture between the law on the books and the practical law. which is no less a stimulant, about where we stand in

1. For a good synopsis of this history, see BlAdtmorl! v. British Columbia (Atto17ll!J Gmntd), [2009] B.C,J. No. 1890 at para. tff [BLu-kmore].

2, See Robert Matas & Wendy Stueck, ·Polygamy Charges in Bountiful" TIN G/Qbe lind Mail \l January 2009). online: <http://www,theg1obeandmaiLcomlnewsinationallanicle 963758,ece>,

1..\\

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 319

Canada with regard to the status of polygamy.3 This disjuncture will be further pronounced: the most foreseeable outcome of the decision to quash the charges will be a constitutional reference to the British Columbia Court of Appeal to determine whether or not the polygamy section can withstand Charter scrutiny.

Blackmore v. British Columbia makes it clear that the 2007 reasoning of Richard Peck, QC (the Arst special prosecutor assigned by Wally Opal, the Attorney General ofBrltish Columbia), was final, and ought not to have been second and third guessed by the appointment of subsequent special prosecutors who, for all appearances, were assigned to increase the chances of the Attorney General getting a prosccutorial recommendation that was more closdy aligned with his wishes.' Peck was clear that the prospects of a prosecution that would secure a conviction were very uncertain asa result of the conflict of the polygamy section with the freedom of religion section of the CanaJian Charter oJ Rights anti Freedoms.s Given the years of uncertainty generated by the opinions of not only three prosecutors, but also by the "lengthy passage of time since the rust expression of pollee interest in Bountiful, and the existence of prior Crown opinions regarding the constitutionality of s. 293,"'6 Peck fdt strongly that the public interest would be best served by "an authoritative and expeditious judicial resolution of the legal controversy surrounding polygamy. "7

As the prosecutorial history in British Columbia strongly suggests, the current formulation of section 293-the polygamy section-is constitutionally inadequate. Under the circumstances, a call for Parliament to revisit the offi:nce of polygamy de novo is not unlikely, Given the heated poUcy issues on both sides of the polygamy debate, this article takes the current moment of calm before the next storm to gain a new understanding of the rdationship between the state and religious minorities (in addition to other norm-generating communities).

In light of the Bountiful polygamy chatges, and a foreseeable constitutional reference, Canada may find itsdf facing the stark reality of how Canadian family and intimate life has been shaped over the last forty years (i.e., since the Divorce

3. Bw/tmort, supra note 1.

4. Ibid. at pam. 88ff.

5. Candia" Chlll'tn oflUg/lts anti Frmlmns, s. 2(a). Pan: I of the Q",stitution Act, 1982, being Scltedule B to the OuuuWAa 1982 (U.K.). 1982, c. 11 [Charter].

6. Bladtmort. supra note 1 at para. 20.

7. IbU£ at para. 21.

320 (2009)47 OSGOODE HALL LAW JOURNAL

Act (1968) 8 and Prime Minister Trudeau's ushering of the state from the bedrooms of the nation's consenting adults'). It may And that the sociological, jurisprudential, and legislative shifts during this period have placed Parliament in such a position that it cannot identify a specific mischief in the polygamy section that is not simultaneously permitted elsewhere in law.

Given the religious background of the accused men, and that their faith has already figured so prominendy in the public stance taken up by the defence, 10 the charges should stimulate far more than a review of the role played by polygamous relationships within the growing diversity of legitimate Canadian family,structures. The minority religio-cultural dimension of the Bountiful cases will gain even more attention, precisdy because of polygamy's inscrutable criminal mischief. In light of the vagueness and overbreadth of the current legislation in this area, I argue that the state has left Itself free to launch a "standardless sweep,"" driven by the predilections of law enforcement officials. These predilections appear tchave brought religious minorities, particularly Fundamentalist Mormons, within their sights.

The vociferous crowd that exhorted the Attorney General of British Columbia to pursue the Bountiful prosecutions was convinced that, whether or not there is a deep harm associated with polygamy in and of itself, the relational arrangement is a Gordian knot that is inextricably tangled with vety grave social harms, such as the sexual exploitation of -and sexual interference with-minors, the marriage of underage children to adults, and the subjugation and oppression of women. 12 In

S. Divorce M S.C. 1967-6S, Co 24 (DillOTCe Aa (196S)].

9. Pierre Trudeau, "There's No Place for the State in the Bedrooms of the Nation" CBC Telernsioll News (broadcast 21 December 1967) in CBC Digital Archives, "Trudeau's Omnlbus Bill: OWlenging Canadian Taboos," online: <http://~ves.cbc.a1politicslrights_

tteedomsitopicsl53S/>.

10. -Bountiful Leader calls Polygamy Charge 'Religious Perseeudon" CBCNnlMtl (S ]anlW)' 2009), online: <http://www.cbc.calanada/british-columbialstory/2009/01/0SIbc-polygamywinsto'n-bladanore.htmb.

11. This is tfu: language of one of the leading c;ases on ~ held to be void for vagueness. See ~tTus. 193 ANi 195.1(1)(&) of tIN Crimintd CoJr (Miln.), [1990] 1 S.C.R. 1123 at para. 41 [Prwtitu#OIl Refmn"].

12. See Daphne Bramham, Tb« Seaa LJlld qfSaintl: ChiIJ Brilles ANi /.pst Boys in CtmatJ4 's PO/n1lmOHS MOT71llJII Sea (Toronto: Random House, 200S) [Bramham, The Sm-et LJIIa].

DRUMMOND, POLYGAMY"S INSCRUTABLE MISCHIEF 321

this climate of generalized anxiety about possible misconduct in the Bountiful community, it is important to point out that not a single charge has been laid for these latter harms, only two of which--sexual exploitation and sexual interference-constitute criminal offences,"

If evidence exists that men in Bountiful have sexually exploited or interfered with young people, charges should be laid under the aforementioned sections of the Criminal Code. The. religious background of the defendants is irrelevant to the validity of these charges. Religious freedom, protected under section 2(a) of the Constitution Act, 1982,'4 does not extend to the protection of rdigious practices that harm the integrity of young people in this particularly pernicious way. However, none of the three special prosecutors that the Attorney General hired (one after the other) to ferret out evidence of crimes and misdemeanors in Bountiful uncovered sufficient evidence to prosecute." As defence counsel shrewdly elected to proceed with a trial in the Superior Coutt of British Columbia," the Crown was precluded from going on a fishing expedition for more evidence of alleged lateral offences through a preliminary Inqulry,"

I will leave the argument of whether or not the subjugation and oppression of women should be a criminal offence to those more ideologically driven than myself. However, the other tangle in polygamy's Gordian knot-underage marriage-is not a criminal offence in Canada. Furthermore, in the area of civil law, "the state of this law is deplorable,"18 and has left federal common law to determine the age of consent to marriage. This antiquated body of law permits

13. CriminAl Code, RS.C. 1985, Co C46, s, 153 (as amended by RS .• 1985. Co 19 (3rd Supp.). s, 1; 2005. Co 32, So 4; 2008. Co 6. s. 54) (CriminJ Code].

14. CAnstilution M 1982. s, 2(a). being Schedule B to the CanaJ4 Att 1982 (U.K.). 1982. c. 11 [ConslihllionAa. 19&2]. Sec also CINlrtn". sup''' note 5.5. 2(a).

15. Sec ~.g. Richard C.c. Peck, QC. &pori of the Spedid Pros«IIIfJr for AlIeglZlions ofMisaJnJua AssocitlteJ with Bttutllifo/. BC: Srmmut7] ofOmelusions. online: <http://www.c:anada.oomI vancouvcrsunlncw.s/extnslbountifuLpdf>.

16. Sec Daphne Bramham. -Accused Polygamist to Use Gay-marriage Laws as Defence; Case Held Over Until Feb. 18 as Lawyers Gather Evidence" 0:1IIZIitz.com (22JanlW)' 2009). online: <http://www.c:anada.oomItopicslnewsiltory.btml?ld=1202730>.

17. Such an inquiry might be conducted in pan by calling women and other members of the c:ommunity to testify under oath about any evidence rdcvant to the presumed harms of polygamy.

18. Sec Siinon R Fadden. EsuntiAls ofO:ntzditm lAw: Fllmil} lAw (Toronto: Irwin Law. 1999) at 20.

322 (2009)47 OSGOODE HALL LAW JOURNAL

Canadian children to marry at age seven 19 -the marriage being merely voidable until the age of twelve for girls and fourteen for boys, after which point it becomes fully valid.20 As a result of these various disqualifications, polygamy, in and of itself, remained the focus of criminal inquiry in the Bountiful cases, effectively disentangled from the other presumed knots of criminal intrigue such as underage marriage, and sexual exploitation and interference.

In this article, I argue that the mischief in the Criminal Code's polygamy section is inscrutable to the reasonable pen;on with ordinary powers of discernment. Such powers arc informed by a mundane immersion in the complex social norms and debates that relate to the intimate and familial life that has emerged since the late 19605. Polygamy's mischief is also inscrutable to those with more focused lenses, who arc trained to discern the intelligibility that emerges out of the more rarified and picayune normativity of both common law and statute. The meaning of the polygamy section, for both amateur and expert audiences, is vague. Beyond being merely vague in legal and social import, however, the provision itself is vague, and it should therefore be declared "void for vagueness" in conjunction with section 7 of the Charter.21

The concept of conjugality is the most credible fulcrum on which to hinge the intelligibility of the polygamy section. This provision places in jeopardy everyone who enters into "'any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage ... 22 This concept of conjugal union appears broad enough to include those who ate ciVillJt married, those who are religiously, culturally. or customarily hound to each other. those who are intimately connected with each other. and those who are otherwise cohabiting in a spouse-like relationship.

However. the polygamy section has to be examined in the context of the Canadian legal sysrem as a whole. I argue that both case law and. statutes--in

19. This is the law for childrcn In the common law provinces cifCanada. TMFeJnalLawCiIIil4zw H_,,~ Actc:hangcd the law for ~ alone, so that the minimum age for maniagc: in ~ Is now sixteen. See Fet/n-al Law - Of/U lAw HllrmonizatitmAa, No. I, S.C. 2001. c. 4. s, 6.

20. Fadden, SilpTIl note 18 at 20. See also Mary Jane Mossman. FIlmiIin and til; Law in Can4IIa:

Cases lind Commnllllry (Toronto: Emond Montgomery. 2004) at 82; Berend Hovlus, Fllmil] Law: Oues, Notes and MateritJls. 6th ed, (T oronrer Thomson Carswdl. 2005) at 131.

21. Charter, supra note 5, So 7.

22. Crimin4 Code. IIIpra note 13, So 293 (as amended by R.S •• Co C-34. s. 257).

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 323

f.uni1y law; in cognate areas of the criminal law, and under the polygamy section itself-have carved signiflcant chunks of intelligibility out of any intuitive meaning of conjugality for the purposes of the polygamy provision. Whatever intelligibility remains is problematically vague for the criminal law.

1 will demonstrate that this jurisprudential evisceration of possible readings of polygamy leaves the section with a fraught history of persecution against social, political, and religious minorities, while leaving its residual definitional content--conjugality-devoid of a specific meaning. The jurisprudential concept of a conjugal (or spouse-like) relationship in f.uni1y law has degenerated to the extent that it fails to provide sufficient interpretive guidance for anticipating when one is in such a relationship, or how one can avoid such a situatiOI'l-llll afHiction that is troubling in f.uni1y law, and &tal to the aitninallaw. The common law definition of conjugal union has no essential elements. Conjugal unions do not need to be sexual in nature to exist, and the parties to a conjugal union do not need to share a residence, pool domestic tasks and assets, or have generated a social perception of conjugality. The cluster of marriage-like features is intentionally flexible, and judges are left: to an "I know it when I sec it approach."23

As a result of major shifts in values within family law, the polygamy offence no longer coincides with the contemporary substratum of values about family and sexualiry, which have emerged over the last forty years in Canadian law and society. The relevance offormJ4 conjligalit:y--ttiggered by marriage, extinguished by divorce, and shielded in between by privacy-has been turned inside-out by the sociological and legal significance of functionJ5 conjugality. For the latter

23. This point ~ made in Br=da Cossman &: Bruce Ryder. "What is Maniagc-Likc Like? The Irrelevance ofConjugaIity" (2001) 18 Can. J. Fam. L. 269 at 299 [Cossman &: Ryder. ·M~Likej. 1 return to this article below in the discussion about the meaning of ~CXlnjugality"

24. By formal, 1 mean state-gcncratcd (it .• civU) marriage.

25. To uack developments in this direction. sec Brenda.Cossman &: Bruce Ryder. "The LcgaI Rcgu1ation of Adult Pctsonal Relationships: EvalUating Polley Objcaivcs and LcgaI Options in Federal Lcglslatlon· (Origb\ally prepared for the. Law Commission of Canada, 1 May 2000).onUnc: <Ilttp:lldalspaccl.llbruy.da1.caldspacelbitsttcamlhandlcll02221102591 Cossman....Rydcr%20R=arch%20Rcgu1ation%2OAdult%20Rclationships%20EN.pdP.scquc: na:=l>; Brenda Cossman &: Brua: Ryder, -Beyond Conjugality: Rccognlzingand Supporting CIosc Personal Adult Relationships' (Originally prepared for the Law Commission of Canada, 21 Dcccmbcr 2001). onUnc: <http://www.samcsc:mwriage.caldoai

324 (2009147 OSGOODE HALL LAWJOURNAL

construct, the content of intimate and familial relationships has become an alternate focus of legal scrutiny. Meanwhile, the contemporary range of sexual and familial. divets.ity deprives fonctional conjugality of the bright-line coherence that it might have once had in an era where the range of 'normal' families was quite narrow. Conjugality itself appeal'S to be collapsing into uncertainty and incoherence in its most familiar domain: family laW.26 These parallel developments in the socia-legal conceptions of family and intimacy have outpaced a polygamy offence that has been virtually unused since the fust Crimirutl Code of 1892. As a result, the polygamy offence has collapsed into the disintegrating concept of conjugality, rendering the hann that it targets all themore inscrutable.

Taking into account all of these statutory and. jurisprudential understandings of what constitutes a "form of marriagc,"27 "any form of polygamy, "28 and "any kind of conjugal union, whether or not it is by law recognized as a binding foon of marriage, ,,29 it becomes virtually impossible to articulate what the criminal conception of bigamy or polygamy amounts to, and what the core mischief is that underlies it. It also becomes virtually impossible for the provisions to provide fair notice that particular conduct falls within the scope of the offence. Thus, criminal law is the wrong instrument for addressing worries about the vulnerabilities of women and children within plural &.mily arrangements. As the final section of this article demonstrates, these legitimate anxieties about women and children can be addressed through a plethora of alternative reglilatory means, none of which assail fundamental principles of justice entrenched in the constitution.

I. CHARTER TROUBLE: VOID FOR VAGUENESS

With the polygamy section left as the only possible offence under which the accused men in the Bountiful cases were subject to conviction, deciphering its specific harm would have become the central preoccupation of not just the parties involved in the cases, but the general public as well. A constitutional reference will further remove the polygamy provision from the factual nexus in any par-

beyond_conjugality.pdf>. For a rd'en:na: to the discussion 5urroundingfonaional conjugality. lee Cossman & Ryder. "Marriage-Like; supra note 2'.

26. IhM.

27. Criminal <AM, supra note 13, s, 293 (u amended by R.S., Co C34, 5. 257).

28. Ibid

29. Ibid

DRUMMOND. POLYGAMY"S INSCRUTABLE MISCHIEF 325

ticular community. bringing the Charter issues to the forefront. Deciphering the harm in polygamy will thus demand a broader order of inquiry-beyond the community of Bountiful-and the Crown will be compelled to locate the pressing and substantial objective that drives the legislation. This objective must be one that is capable of overriding a variety of human rights that are at stake in the prosecutions.

The approach most likely to succeed will be rooted in the claim that section 293 of the Criminal Code violates the right to religious freedom that is guaranteed by section 2(a) of the Charter.3D This, indeed. has been the recurrent response of the Crown and special prosecutors in British Columbia with regard to the main hurdles in laying charges in the Bountiful context. A challenge to section 293 under section 7 of the Chartet'l (the right to Ufe. Uberty. and security of person) is thought by some legal scholars to be less powerful," It is suggested that such a challenge would focus on the Uberty interest in section 7. as it engages with civil law-specifically with the civil definition of marriage. The Supreme Court of Canada (SCC) has found that liberty is infringed when the law prevents a person from making "fundamental personal chokes."33 The right to choose whom one marries would be such a paradigmatic, fundamental personal choice.

Under this argument. the liberty to marry both religiously and polygamously is broad enough to capture the Bountiful situation. but broader. perhaps, than is necessary for those particular cases. The liberty right guaranteed under section 7 may be more fitting for an independent challenge to the civil definition of marriage that is specified in the Civil Marriage Act.34 The latter defines marriage. for civil purposes, as "the lawful union of two persons to the exclusion of all others. "35

30. Sec Martha BaUey d aL, "Explaining Recognition of Foreign Polygamous Marriagc5: Policy Implications for Canada"1n Pot,gmny in 0zntu:I4: Legal and Sod411mplkationsfor Womm and ChiIdrm -A Colleaum ofPolky Res'll1'Ch &pqrts (Ona.wa: Status of Women Canada. 2005) at 19, online:: <http://cpc.Iac-bac.gc.calI00/200/301/swa:fclpolygamyeJpdf/2oo5l1_ 0662420683_c.pdf> [Pob'g"my in 0tn.:uIa].

31. Ch.mrr, supra note 5, s. 7.

32. Bailey d 4.; supra note 30 at 30. Sec also Nicholas Bala, • An International RcMcw of Polygamy:

Lcga1 and Policy Implications for Canada· In Polygmny in 0uwJa, supr" DOte 30 at 39.

33. BImaJe II. British CoIumbiJI (HUm41I Rightl CommiJsitm). [2000] 2 S.C.R. 307 at paras. 49-54 (and eases cited therein).

34. S.C. 2005. Co 33.1. 2 (CivilManiage.Aa].

35. IbuJ. For this So 7 Charter analysis, sec Bailey d aL, suP'" note 30.

326 (2009) 47 OSGOODE HALL LAW JOURNAL

There is another very compelling section 7 argument availablc--one, I believe, that is fatal for the constitutionality of section 293 of the Criminal Code. It can be argued that the polygamy offense is both vague. (void for uncertainty) and overbroad, and is therefore a fundamentally unjust violation of the liberty right in section 7 of the Charter. Given that a conviction pursuant to section 293 can lead to imprisonment for up to flve years, this section carries a far graver threat to hoerty than state interference with fundamental personal choices. The Criminal Code provisions relating to polygamy, already problematically drafted in 1892, have not kept pace with the effects of federal divorce law since 1968, with the soclo-legal changes in the structure of the family, and with other developments within criminal law. In the language of R. II. Nova SCPtia Pharmaceutical SOcktj6 (another leading case on the void for vagueness doctrine), the "substratum of vaIues"37 that underlies legal enactments and provides the substantive content of fair notice has shifted considerably over the last forty years. The polygamy provision is no longer coincident with that substratum. It is now almost impossible for citizens to foresee what conduct they must avoid in order to remain beyond the reach of section 293. Where citizens are potentially liable to having their liberty deprived, such reasonable foreseeability is critical to ensuring that deprivations of liberty are in accordance with the principles of fundamental justice.3B

In particular, the see has established that a vague law offends the principles of fundamental justice under section 7 of the Charter because:

[ilt is essential in a free and democratic Society that citizens are able, as far as is p0sslble, to foresee the consequences of their conduct in order th3t persons be given wr notice of what to lIVoid, and that the discretion of those: entrusted with law enfOrcement is limited by dear and explicit legislative standards. . •• This is especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the Iaw.3'

The difficulty with the ways in which the current Criminal Code provisions have been interpreted. and the ways in which they have interacted with or been overtaken by developments in private law. has precluded reasonable

36. [1992] 2 S.C.R. 606 [NS Phtmn4.naiazIl.

37. Ibid at para. 48.

38. Sec: Promtution Re,forem" supttl note 11 a~ para. 38.

39. Ibid at para. 3.4.

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 327

foresight of what can be considered to be legal and illegal behaviour with respect to multiple partners,

The provisions on their own arc astonishingly overbroad. referring to "any form of polygamy" and "any kind of conjugal union whether or not. it is by law recognized as a binding form of marriage."4Q For example. a party in the common situation of living separate and apan from a civil spouse while waiting for a civil divorce, but who beglns to live with another spouse with whom he or she wants to build a Ufe. is captured by the provislon." Additional proof that the provision's language is overbroad can be found in the radical dissonance between the proclaimed contemporary objective of the provision and its consequences. Protecting the vulnerabilities of women and children is sometimes taken to be the pressing and substantial objective that replaced the religiously discriminatory objective in the Criminal Cork when amendments were made to the polygamy offence in the 19505.42 Yet, not only is the net of this provision cast broadly over a vast range of relationship configurations, it. is calibrated to catch "[e]very one"43 who is in one of these forbidden relationships.

This concept of "[eJvery one"" includes women in plural marriages. As has been argued effectively elsewhere," these women are in just as much jeopardy as men, since they arc also Uable to spend up to five years in prison. This criminaUzation of their relationships renders them far less Ukely to come forward and assert their rights under areas oflaw that do protect their vulnerabilities, such as division of matrimonial property. spousal support, and child support."

The excessive scope of the provision is a concern that is closely related to its

40. Criminal UJe, supra note 13. s; 293 (as amended by RS., c, C-34, So 257).

41. For the jurisprudential und~ of what makes a provision too broad, see R. II. Heywood. [1994] 3 S.C.R 761.

42. For the feminist argument. see Department of Justice Canada, Polygyny tmJ QznaJa's Obligations U7uIn /~ HII71IIIIl Rights Law by Rebecca J. Cook & LIsa M. KdIy (Ottawa: Family, CblIdren and Youth Section, 2006); See also BaJa, supra note 32.

43. Criminal UJe, supra note 13, s, 293.

Eo", tnU who Ca) praaises or enters Into or In any manner agrees or consents to p~ or enter Into (i) Illy ronn of polygamy, or en any kind of conjU211 union with morc than one penon at the same lime,... .11 guutj _ of an Indictible Qllimcc ana liable to imprisonment lOr a term not excccdIng five years. {tmplwltaddcdJ

44. IbiJ,

45. Sec Bailey It Ill, supra note 30 at 17.

46. /biJ.

328 [2009)47 OSGOODE HAll LAW JOURNAL

potential vagueness. Both concerns form the basis of "the minimum standard for the formal content of law demanded by principles of fundamental justice."47 Based on the criterion used by Justice Gonthier to hold a law as void for vagueness, the far-reaching polygamy provision may be determined to be "so devoid of precision in (its] content that a conviction will automatically flow from the decision to prosecute. "48 Thus, not only does this provision open the door to a "standardless sweep, "49 it also opens the door for "law enforcement officials to pursue rheir personal predilections."so

In the Prostitution &ference, Justice Lamer srresses that the doctrine does not require absolute certainty in its formulation.51 Further, the doctrine "is not to be applied to the bare words of the statutory provision, but, rather, to the provision as interpreted and applied in judicial decisions."52 The provision, in other words, needs to be read in light of relevant case law. While no law can meet the standard of absolute certainty, both the principle of fair notice to citizens (particularly for criminal law, where individual liberty is in jeopardy) and that of limiting the discretion of enforcement powers, however, strongly indicate that the current polygamy section offends the principles of fundamental justice that are set out in section 7 of the Charter. This is particularly so in light of a massive shift in the substratum of values regarding family and sexuality since the late 1960~ substratum that is accessible to all Canadians who might otherwise lack access to the technicalities of formal notice. Additionally, this substratum provides the moral foreseeability of harm, and generates the substantive nonce that, in turn, can inoculate legal enactments from claims of arbitrariness.53 What remains, then, for the purposes of determining whether

47. Jamie Cameron &Jamcs Sttibopoulos, cW •• me Charter lind CrimiNdJIISti«: Twmty Five }';olin L4ter. 1st cd. (Marldwn: LexisNex:i$, 2008) at 474.

48. NS P~t!clll, suprll note 36 ar para. 53.

49. ~stitution Reflrma.suprll note 11 ar para. 41. Both this danger and the next were critiqued

in Justice Lamer's disquisition on void for vagueness.

50. lhiJ.

51. IbitL;¢ para. 40.

52. IbitL See also NS phtzrm4uutkJ, supra note 36; Cmat:Iitm FqunJ.tiqn for ChilJmz, Youth tmtJ tIM lAw II. 0m4tJts (Attorney General). [2004] 1 S.C.R. 76 [Cmat:Iitm FllUndtuion]; Canada (A1tI1I'MJ GmmtI) 11. ]11-Miu:tW1IIIId CtJ7p •• [2007] 2 S.GR. 610 £fTJ-Mi«do1lllld CtJ7p.]

53. NS p~ ibid. at para. 48.

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 329

the polygamy section falls afoul of the doctrine of void for vagueness, is a review of how the provision and its embedded terms have been interpreted and applied in judicial decisions,

Before examining this jurisprudential history, it is worth turning briefly to the provision's socio-legal history. One of the features of a law that is void for vagueness is that it encourages arbitrary and erratic arrests and convictions. In the case of the polygamy section, this concern seems particularly acute, given that the provision was originally drafted in 1892 to target Fundamentalist MormonS,54 char a disproportionate number of those convicted under the provision have been Aboriginal men, and that public pressure to prosecute is mostly directed at religious minorities, including Muslims.

II. CIVIL VULNERABILITIES AND STANDARDLESS SWEEPS

The argument that section 293 is vague and overly broad is related to claims that might be made with respect to religious freedom, and also to the argument that the polygamy law discriminates on the ground of religious belief Any criminal law that is problematically vague or overbroad leaves socially and politically marginalized groups vulnerable to a "standardless sweep"55 that might be driven by the predilections of law enforcement officials. In light of their roots, this anxiety seems particularly acute with respect to the polygamy laws.

The historical origins of the polygamy offence are rooted in ecclesiastical policy, dating as f.u- back as the thirteenth century, as part of the vision for society that was seen by the religious faction that happened to be dominant when the laws were promulgated. At the private law level, Canada entered Confederation with a common law definition of marriage that was embedded in the very case that was finally overturned in the recent flurry of same-sex marriage challenges," Hydev. Hyde andWoodmansee,51 now constitutionally objectionable

54. BaJa, supra notc.32 at 28. To this effca, BaJa nates that:

Polygamy Iw been nq.J in Canada sina: 1892. ThIs provision wu enaaed in Canada .. part of the line CriminJ CDJe; apparcndy .. a raulc of AmeriCan influences ... criminal laws were bcing_ eueted about thac dliI. in the United SlaW to prohibit the pr.acUte of polygamy by mcmben of the Mormon Chwdi.

55. ProstitJition Rtftrmte, supra note II at para. 41.

56. See Hmtirkh t. Q!iIber (Prpcumir gInIrtiJ). [2002) QJ. No. 3816 [Hmtirkh); EGALE CitNtJ4 11K. II. CanIIIftt (AttoT7UJ Gm",Ji), [2003) B.C. J. No. 994 (CA) [EGALE}; and Httlptm II. TDnmtD (City), [2003] O.J. No. 2268 (CA) [Httlpern).

330 (2009) 47 OSGOODE HAlL LAW JOURNAL

for its restriction of marriage to one man and one woman, was, in fact, a case about polygamy-the emphasis in the original case being on one man and one woman. Hyde laid down for all Canadians the civil prohibition on the recognition of polygamoU$ marriages by clearly enunciating the presumed ecclesiastical motif for all forms of legitimate marriage. 58 This definition prevailed in Canada from 1866-2005. and the prohibition on plural unions for civil marriages is now embedded in the Civil Mamagt Act of 2005 (and separated from all reference to religiosity).59

The very explicidy Christian context of Canadian family law is evident in the civil understanding of polyg:uny and monogamy. The deliberate setting up of teligioU$ minorities (and their conceptions of marriage) as outliers to the dominant religious affiliation of the nascent state is evident from the fact that the plaintiff in the Hyde case was a Mormon. Given that, in the words of the judge, "the matrimonial law of thls countty is adapted to the Christian marriage. "60 a marriage under Mormon law was grouped in the same ~tegory as martiage.s formed among "infidel nations"61---a formation beyond the collective pale.

Canadian anti-polygamy legislation arose directly out of cross-border pressure from the American government to follow a set of statutory persecutions enacted over a period of thirty years against fundatnentalist Mormons. This was an agenda, which, in the United States, was closdywed to a political and military campaign against a secessionist movement in Utah that was led by the Mormon founder, Joseph Smith. In response to the secessionist threat in Utah, the US Congress began to pass legislation, starting with the Mori// Act of 1 July 1862, that was designed to oudaw bigamy and polygamy in the US Territorles." The MoriO Act inaugurated successive encroachments on Mormon rights, which eventually included the seizure of property and the deprivation of citizenship

57. [1866] 1 L.R.P. & D. 130 [Hyde].

5S. Ibid. at 130 ("Marriage as understood in ChristmJqm.is the volunwy union for life of one man and one woman, to the exclusion of all others· [emphasis added).

59. CitJiI M4Triagekt, supra note 34, s. 2 ("Marriage, for civil pUl'pOiCS. is the lawful union of

two persons to the exduslo.n of all others").

60. Hyde, supra note 57 at 135.

61. Ibid. at 134.

62. See Martha M. Enman, "Race Treason: The Untold StillY of America's Ban on Polygamy· (University of Maryland, Legal Studies Research Paper No. 2OOS-37, 26 Ma.rch 2009) at 9, n. 17, online: <http://paperusrn.comlsol3/papm.cfm?abstract.Jd5127oo23>.

DRUMMOND, POLYGAMY'S INSCRUTABLE MISCHIEF 331

rights such as voting, holding office, and sitting on juries.63 The culmination of a series of these statutes was the Edmunds- Tucker Act of 1887,64 which tightened the evidentiary noose for successful prcsecudoa." Shortly thereafter, the majority sect of Mormons capitulated to federal government demands to forfeit polygamy. On the other hand, the FLDS Mormons fled persecution in the United States, and sought refuge in British Columbia and Alberta.

It should not be mistakenly assumed that the nineteenth century American position on polygamy-as articulated in statute books, in the courts, and in public debate-was about gender equality. Apart from the efforts by the federal government to control what they regarded as treacherous Mormon claims to political, economic, and social control of Utah in the late nineteenth century, Martha Ertman has demonstrated that the govc:tnment was just as preoccupied with how white polygamists were engaged in race treason." Rejecting Mormon claims that polygamy was protected as the free exercise of religion, Reynolds v. United St:llJes'7 (the. leading anti-polygamy case from that era) notes that polygamy was "odious among the northern and western nations of Europe '" almost exclusively a feature of the life of Asiatic and of African people, "68 Ertman demonstrates how polygamy "provided the justification for the larger culture to demote white Mormons from full citizenship on the grounds of racial inferiotity"" and, by an arsenal of such rhetorical devices, was used to forcefully thwart Joseph Smith's aspirations to establish a separatist theocracy in Utah, As a result, and under pressure from the Americans to criminalize Monnon polygamy, the Canadian Parliament inserted a targeted clause in the polygamy provisions in 1892. This clause was not removed from the Criminal Code until 1954.70

The racialized and politicized roots of the polygamy doctrine in both the United States and Canada give pause to assertions that it can be invoked without xenophobic taint. However, there are other socio-legal dimensions of the polyg-

63. Ibid.
64. Ibid.
65. Ibid.
66. Ibid.
67, 98 U.S. 145 (1878).
68. Ibid. at 164.
69. Ertman, supTii note 62 at 5.
70. See Bailey It al, SUp4 note 30 at 23. 332 (2Q09)47 OSGOODE HALL lAW JOURNAL

amy law in Canada that suggest that it has been used as an instrument of colonization (i.e., through the forceful restructuring of Aboriginal family structures). Since 1892, there have only been a handful of such prosecutions under the code's polygamy sections. One of the more salient of these was R. II. Bear's Shin Bone,71 the 1899 case of a Blood Indian from the North West Territories, Beat's Shin Bone. who was convicted under the polygamy section for entering into simultaneous conjugal unions with two women." The marriages were formed "Indian fashion, »73 meaning that "he promised to keep her all her life, and she promised to stay with him, and that that was the way Indians got married. »74

Aboriginal customary law is itself plural and complex, reflecting the plethora of practices engaged in by a diversity of First Nations. However, the concept of marriages formed "Indian fushion," as articulated in Btar's Shin Bone, does not belong to Aboriginal customary law, but rather to Aboriginal common law-a body of law built on the middle ground of interactions between Aboriginal peoples and the incoming settlers, and issuing from the common law courts ofCanada.75 In the domain of family law, this body of mixed common law contains a fairly narrow list of cases, and perhaps an even narrower (and increasingly narrowing) conception of what constitutes customary marriage. The most recent of these common law cases constitutionalJzes customary matriage, and it does so in a way that perpetuates the forceful restructuring of First Nations kinship structures that were inaugurated with cases like Bear's Shin Bone.

What constitutes an "Indian matriage" is articulated in a manner that may be ethnocentric and offensive to endogenous understandings of customary marriage among Aboriginal peoples. However, it is worth. reproducing for its resonance with the contemporary widespread phenomenon of cohabitation. Bear's Shin Bone relies on the following conception of "Indian marriage":

It is plain that among the savage tribes on this continent marriage is merely a natural contact and that neither law, custom nor religion has affixed to it any conditions or limitations or forms other than what nature has itself prescribed •.•. Wherever mar-

71. (1899),4 Terr. L.R. 173 [Bt4r~Shin Bone]. 72 Ibid.

73. Ibid.

74. R. II. NIlII-E-Qpis-A-KA (1889), 1 Terr.L.R. 211 at 211 [NIlII-E-Qpis-A-Ka].

75. Sec Jemnr Webber, "Rdations of Force and Relations ofJusticc: The Emergence of Normative Commlmity Bctw=D Colonists and Aboriginal Peoples" (1995) 33 Osgoode Hall L.J. 623.

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 333

mgt is governed by no statute consent constitutes marriage and that consent is shewn by their living together."

It is hard to suppress the sense that the marriage for which the judge in Bone was convicting is closely commensurate with contemporary statutory understandings of unmarried cohabitation. But this common ~ understanding of Aboriginal marriage is not quite commensurate with cohabitation, as it lacks the requirement (now set out in federal and provincial statutes) for a qualifying period of living together (generally of one to three years), made shorter by the birth of a child." An Aboriginal marriage under common law criteria is more easily formed than unmarried cohabitation-something that appears to make First Nations people more vulnerable to conviction under the polygamy law.

The contemporary legal way to distinguish between Aboriginal and nonAboriginal cohabitation is via section 24 of the Constitution Act, 1867a and section 35 of the Constitution Act, 1982." The former facilitates the creation of a distinct marriage regime for Aboriginal people under the auspices of federal jurisdiction, and the latter constitutionally protects persisting Aboriginal rights from extinguishment or encroachment without due process and appropriate justification. What might othetwise be functionally analogous to unmarried cohabitation (i;e., living together constitutes consent and consent constitutes marriage) can thereby be elevated for Aboriginal people to the constitutionallyprotected Status of a customary marriage.

This constitutional security petversdy appears to make Aboriginal people particularly vulnerable under the polygamy section. This phenomenon provides a cautionary tale about the availability of these deeply ambiguous provisions to discipline socially and politically-marginalized groups in Canada. In light of these arguments, harm to rdigious groups and minority communities becomes more salient and poignant. The odour of religious persecution lingers over the offence, particularly when conjoined with the ways in which it has been historically directed or applied to socially and politically-marginalized groups.

76. NII1I-E-Quis-A-KA, SUPT" note 74 at paras. 3. 6.

77. Ste~.g: F~LaIllM. R.S.O. 1990,c. F.3.s. 29 [Fam~Law.Act] (providingtbcdcBnition of "spoU5C").

78. ConstiJutkmM. 1867(U.K.). 30 & 31 Viet., c. 3. s. 24.rcprinted in R.S.C. 19115, App. II, No. 5 [Constitution Act. 1867.1.

79. ConstitutitillM. 1982, SUPT" note 14, s. 35.

334 (2009) 47 O$GOODE HALL LAW JOURNAL

III. FAMILY LAW'S SUBSTRATUM OF VALUES

Although the small handful of cases relating to the polygamy secdon itself provide some clarity. Canada's polygamy cases have not single-handedly eliminated the confiislon surrounding the offence. The criminal law does not exist as a silo that is separated from other areas of Canadian law. It has to be examined in the context of the Canadian legal system as a whole. This approach is particularly justified when a Criminal Code provision refers to a concept such as that of the conjugal union-i.t' .• a concept that is otherwise not defined in the Criminal Cotk. but has instead acquired its flesh and blood from developments within family law. By eliminating some of the ways in which the polygamy section might have been read. it should become clear that the legal construct of the conjugal union has been left to do all of the polygamy offence's work (and it is a construct that Is, itself, precarious in law).

This section addresses the civil status of religious marriages. and how the Divorct' Act (1968) inaugurated a series of changes in the ways in which religious marriages must now be conceived-a conception that was inchoate within Canadian conflict of laws rules. The Divorct' Act (1968) changed the way that provincial marriage acts must now be read. particularly with respect to religious marriages. The interaction between these federal and provincial family laws shifts the interpretive possibilities of the bigamy section in the Crimina/ Code. These subtle transformations collectively have an impact on the meaning of the words in the polygamy section and the scope of the jeopardy that it envisages. The result of these shifts is that Canadian law tolerates informal (i.t'.. non-civil) plural unions. as well the simultaneous existence of a civil marriage to one party and a religious marri~ to another.

Under the constitutional division of powers stemming from the Constitution Act, 1867,1ifJ the federal Parliament has jurisdiction over marriage and divorce. The provincial legislatures. however, under powers that relate to the solemnization of marriage. retain the right to legislate the formal conditions for the validity of marriage. such as how many witnesses are required. whether a religious officiant can celebrate the marriage. and which ritual words must be uttered in the creation of all valid civil marriages. Each province regulates these formalities in its own marriage legislation. In addition. the provinces have

80. (An,s#luliDnAet, 1867, supra note 78.

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 335

adopted a pluralistic model with respect to marriage: officiants. Structured into the rules of marriage solemnization is a facility that bestows religious officials with the delegated authority-equal to that of civil bureaucrats-to create a civil marriage simultaneously with a religious marriage. 81

It is significant that any religious martiage ceremony that takes place before, during. orafier a civU solemnization is incidental and has no civil legal effect in and of itsel£ These non-clvil marriages are legal nullities in the eyes of Canadian law. Celestial unions and marriages performed strictly according to Jewish, Muslim, or Catholic law, for example, are legally irrelevant for the civil law, independent of a coincident period of conjugal cohabitation. Canada's pluralism in the domain of marriage law is distinguishable from the exclusively bureaucratic model of civU marriage in jurisdictions such as France, which only allows civil officials to create a valid civil marriage.

Beyond this pluralism in marriage formation in Canadian law, religious celebration of marriage outside of civil solemnization is not prohibited. There is no requirement in provincial marriage {solemnization} acts or in other Canadian legislation that compels a religious community to nominate a civil officiant for all marriages concluded within that community, or compels individual couples within religious communities to get a civU marriage. The state has no say or interest in what constitutes a religious marriage that does not have contact with the civil law, nor with respect to who is qualified to perfect it. Canadian tolerance for religious marriages transacted outside of the civU marriage framework can again be contrasted with jurisdictions such as France, which prohibit, with penal sanctions, the celebration of a religious marriage prior or simultaneous to civil solemnization. The French Code Pen4,4 for example, stipulates that

[a]ny minister of religion who habirually conducts religious ceremonies of marriages without being presented beforehand with the marriage certificate received by of. ficials responsible for civil sta~ is punished by six months' imprisonment and a fine of€7,500.82

The tentative Impllcadon of these features of Canada's marriage solemni7ation laws is that Canada de foao tolerates plural religious marriages within its territory. This is partly a result of Canada's lack of a mechanism for the identification of

81. Sec e.g. MllITiItgt kt, R.S.O. 1990, Co M.3.5o 20 [M4rri4gt Act}.

82. An. 433-21 C. pen., online: <http://195.83.177.9Icodc1liste.phtm1?lang=uk&C=331lcr= 3828>.

336 (2009) 47 OSGOODE HALL LAW JOURNAL

informal plural unions, where the parties have never intersected with the state in order to obtain a civil marriage. However, this pragmatic tolerance gets elevated to a legal tolerance in the context of both the civil nullity of religious marriage within Canada and Canada's conflict of laws rules that deal specifically with plural non-civil unions.

The first conflict of laws rule deals with plural unions celebrated by religious communities within countries that do not permit polygamy. Such arrangements are not recognized as valid foreign marriages under civil law. However, no civil consequences will flow from such a rdigious ceremony.83 Beyond plural religious marriages performed in other countries that prohibit polygamy, private international law regards marriages celebrated in Canada "in non-monogamous form without a preceding ceremonyIn accordance with Canadian provincial law [as] ..• nullltjies], "84 Canadian private international law groups non-civil plural marriage with other forms of civilly meaningless acts. They are as void ab initio as would be a marriage within the prohibited degrees of consanguinity, as or as would have been a same-sex marriage prior to the Civil Marriage Act' and the court of appeal decisions that sanctioned same-sex marrlages."

Under this logic. a plurality of such nullities also amounts to a nullity. To put the implications of the civil nullity of religious marriage suCcinctly, these unions cross the threshold of potential criminal liability only in the polygamy and bigamy sections of the Act, when they, as a matter of fact, coincide with the status of unmarried cohabitation. Where a plurality of simultaneous religious marriages to different people might intuitively seem to constitute "any form of polygamy"88 for the purposes of the polygamy section, the civil nullity of religious marriage reduces me content of me first subsection of the polygamy offence to little more man a tautological phrase: "[e]very one who enters into

83. Sec Bailey a Ill. IUpr4 note 30 at '2-

84 Qrneshi fl. Qureshi. [1911] 1 All E.R. 325. See also Jean-Gabricl Castel & Janet Walker. 0ztuuIi4n Conflict D/14ws, 6th ed, (Markham: LmsNexis Buttcrworths Canada, 2005) vol. 2, s. 16.6.

85. MIlTriIzge (Prohibiled Dtgms) M S.C. 1990. c. 46. s. 2.

86. CiIJil M4rri4gt M supr4 note 34.

81. Hmdrkl:s.lUprtl note 56; EGALE"lUprtl note 56; and Hili,"", supT4 note 56. 88. Crimi1llli CoM. supr4 note 13, s. 293 (as amended by R.S .• Co C34. s. 251).

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 337

any form of polygamy commits the indictable offence of polygamy."89 The addition of "any form of polygamy"9D to the polygamy section adds nothing that is not covered by "any kind of conjugal union?" in the second pan of the section. There are other parts of Canadian family law that confinn that religious marriages are not "forms of marrlage'"! or "conjugal unions"93 for the purposes of bigamy and polygamy-namely. the interaction of the provincial concept of a "lawful impediment to marriage"" and the universal jurisdiction of the Divorce Act (1968).

Beyond the registration requirements that enable religious authorities to perform civil marriages, the other key formality required to perfect a civil marriage is the parties' certification that there is no lawful impediment to their marriage. One such lawful impediment is a prior existing marriage. A petson must be unmarried at the time of the marriage ceremony.95 Further, in family law, a bigamous marriage is void ab initio. As in a religious marriage, it carries no civil consequences in and ofid" Only the fIrst marriage has civil effect.

The absence of an existing marriage is one of the essential conditions of valid marriage formation and. like the age of consent for marriage. it falls under

89. Ibit/.

90. Ibit/.

91. Ibid.

92. Ibid., 1$. 290, 293 (as amended by R.S., c. C-34, s, 257).

93. Ibid., s. 293 (as aImIlded by R.S., Co C-34, s. 257).

94. I will be drawing on the M4tri4,pkt to supportmyargurnerus that relate to Iawfu)

lmpcdimen", Seeeog. Mllrriagtkt.ltlpra note 81, s. 24(3).

In lOme ~ of me <ZraIIOI1)', In !be ~ of the person IOltmnWng the marriage aad wi~. each of th~ panIes shall Clcdarc: I do solemnly declare that I do not knoW of any lawfUf Im~ent Why I, AB, may not be joined In matrimony to CD' ••• and each of me parties shall say to the other: 'I tall upon theac penons here 2regnt to witnea that I, AB. do take you, CD. to be my lawfuJ wedded wife (ff to b. my lawful wedded husband Dr to be my Iawfiil wedded parmer Dr to be my Iawfid wedded spDwe).

95. Fadden. sup,a note 18 at 23.

96. That said, there ate mechanisms in law that allow spouses who, in good wth, thought that they were entering into a monogamous marriage to claim relief under provincial marital property regimCii. See Family Law kt. sup,a note 77, s. 1. They can also claim relief for spousal support if their void marriage coincides with the requirements for unmarried cohabitation. See FamJly lAw A~ supra note 77, s, 29. Under this cohabitatlonal umbrella, they are also eligible for thIrd party benefits such as health benefilS, Canada Pensions Plan benefits, and Insurance claims. See the federal government's MtHInnirAtion ofBmefits muJ ObligaJionsAct, S.C. 2000, c.12 and its provincial equivalents.

338 (2009) 47 OSGOODE HALL LAW JOURNAL

Parliament's jurisdiction. It was not until 2005 that Parliament occupied its jurisdlctlonal authority to define marriage within the Civil Marriage Act,97 and. when it did, it apparently could not have made it clearer that Canadians are permitted only one marriage at a time: "[m]arriage, for civil purposes, is the lawful union of two persons to the exclusion of all others."" What remains unclear about the Act is whether a prior existing religiOUS marriage to one person is a lawful impediment to a civil marriage to another, or whcther-consistcnt with the above analysis of religious marriages as nullities-it is only a prior existing dvil marriage that precludes one from marrying civilly.

The language of the Civil Marriage Act appears to quite self-consciously leave that question alone. The Act explicitly restricts its scope to marriage "for civil purposes. "99 On the surface, the requirement for each spouse to solemnly declare that he or she knows of no lawful impediment to the marriage would seem to suggest that religiously married spouses must declare the latter as a lawful impediment to civil marriage. The prohibition against bigamous marriage in the Civil MIzrrlage Act appears to be reinforced in the criminal prohibition on bigamous marriage under section 290 of the Criminal Code, which makes it an off'ence for anyone who. being married. goes through any other "form of marriage"1DD with another person. Surely, a religious marriage is a form of marriage, even if, as a civil nullity, it does not rise to the status of a civil marriage. If anything creates a lawful impediment to a civil marriage, it would have to be a status that has the capacity to transform a civil marriage into a criminal act. Despite this intuitive undersrandlng, the prevailing interpretation of "lawful impediment," read against the, bigamy section in the Criminal Code and the way that the Divorce Act (1968}1D1 has been jurisprudentially glossed. suggests

97. CivilMtlrrilluAa,supT'tlnotf:34.

98 Ibitl.. So 2. This provision ovenumed, at the: national level, the antecedent tDmmon law definition of marriage in H,Je, su}rtl note 57. that, as noted above, de&cd marriage as "the voluntary union for llfi: of one _ and one W011l41l, to the exclusion of all others" (at 130). The few other sentcDces in the CMI Marridgt Act are ptcatnbular or clarilkatory, and not substantive.

99. Civil MtlrriIlgulrt, ibiJ.

100. Crimi7llll Cotk, suprtl note 13, So 290.

101. The DiIllm'tAct(I968) was followed by the DiIllm'tAa, R.S.c. 1985,c. 3 (2nd Supp.), s, 7 [DWoIrt Act(1985)1. whk:h remains in forCe. The latter changed important pans ofConada's

DRUMMOND, POLYGAMY'S INSCRUTABLE MIS·CHIEF 339

that the civil prohibition on bigamy in the CiviiMarriage Act only applies to multiple civil marriages.

The bigamy section clearly distinguishes "marriage"l02 from "forms of marriage. "103 Marriage simpliciter is civil marriage. The use of the unqualified words "being married" in the first clause of the section104 (as distinct from "forms of marriage" in the second dause105) implies that being married means being civilly married. Once bestowed with the official status of civil marriage, the state does not permit that status to be muddied with any other marriage. The prohibition applies to protect the Status of a pre-existing civil marriage by prohibiting subsequent formal or informal marriages. This sequence is salient.

This argument about the clarity of civil status is an intuitive way of understanding the mischief in bigamy, as opposed to polygamy. Polygamy is intended to capture the situation of having more than one spouse----or being in a conjugal union with more than one person-simultaneously. The bigamy provisions, on the other hand, speak to the offence of participating in a ceremony of marriage while already civilly married.104 A bigamous marriage is also a polygamous marriage, while the reverse is not necessarily true. The distinct nature of the bigamy provisions (relating to clarity of status) would be redundant without both the sequential dimension and the first reference to "being married" in the section signifying civil marriage. This understanding of the import of the bigamy section needs to be read congruently with how the Divorce Act (I 968) has modified what constitutes a lawful impediment to a civil marriage, as well as with the type of relationship that the state adopted with religious family law thereafter.

While Canada has always adopted a pluralistic law of marriage formation, it does not permit any means of dissolving a civil marriage other than through

divorce regime, but 1cfi in place the state's wUVersal jurisdiction over divorce. which was flrst announced in the 1968 At:t and is elaborated upon in this article.

102. "EvelY oneoommirs bigamy who •.• being married, goes through a form of macriage with

another person." Criminal Code. mpra nOli: 13, s. 290.

103.lbiIL

104.lbiIL

105.lbiIL

106. SccAngda Campbell, "Bountiful Voices" (2009) 47 Osgoode Hall L.J. 183.

~\

340 (2009)47 OSGOODE HALL LAW JOURNAL

the actions of a civil official-a jUdge.l07 When Parliament assumed its jurisdiction under section 91(26) of the Constitution Act, 1867, it exhausted the fleld of a national divorce regime with the Divorce Act (1968) .108 Canada does not differentiate distinct communities to be organized under discrete principles of religious law or community law without access to the civil benefits and rights enjoyed by ordinary citizens. Canada's divorce legislation is universal, and this has implications for civil bigamy. as wdl as for the bigamy and polygamy provisions of the Criminal Code.

Soon after the Divorce Act (1968) was enacted, Canadian courts had to deal with the legal consequences of its universal jurisdiction. One of the earliest cases, Morris u; Morris,109 .dealt with the scenario of Jewish agunot (bound women). Talmudic law requires the husband to give his wife a bill of divorce and for her to receive it. Sometimes, however, a husband may refuses to give this bill to his wife, and this leaves her bound in marriage.110 While the we refers to the predicament of civilly-divorced Jewish women who remain religiously married, it also captures the predicament of civilly-divorced Catholic spowes who remain indissolubly bound in a religious marriage. One of the majority judges, arguing against the civil enforceability of rellgious marriages, speculated in the following manner:

Suppose ... that a Catholic wife sought to resist her Catholic husband's petition for divorce on the ground that, having been married according to the; Catholic faith. their marriage should be regarded as indissoluble. Such a plea would constitute a challenge to the authority of the court in divorce matters. It would represent an attempt to displace the general divorce law by the law of a particular religion. A plea of that kind would. of course, not be effective to prevent the court from applying the general law. 111

As an aspect of the "exclusive Legislative Authority of the Parliament of Canada [which] extends to ... Marriage and Divorce"112 (bestowed by section

107. DifJOm.Ad (1985). supra note 101 .• s. 7 ("The jurisdiction conferred on a court by this Act to

grant a divorce shall be exercised only by a judge of the oourt without a jury").

108. Constilutio"Aa, 1867, Stl}ra note 78, s, 91(26).

109. Morris If. Morris (1973), 42 D.L.R. (3d) 550 (Man. C.A.) [Morris].

110. Fo~ a description of the issue and a list of references to Jewish divorce law, see Brule" II.

MllmJllitl:, (200n 3 S.c.R. 607.

111. [bill ar para. 31.

112. Constituli~71Att; 1867, supra note 78, s, 91(26).

DRUMMOND. pOLYGAMY'S INSCRUTABLE MISCHIEF 341

91 of the CoNtifUlion.A&t, 1867), the potentially conflicted co-existence of stare and Catholic law is resolved by rendering the latter civilly ineffective, so that it dwells outside of the penumbra of "official" 113 law.

If Catholic family law (which prohibits divorce) retained its legal force vis-a-vis Canadian family law, the exclusive ability of the Canadian Parliament to create a single divorce regime for all Canadians would inevitably be compromised. The language of the Divorce Act (1968), operative and cited by Justice Guy for Morris, was clear about the civil implications fot religious law in a civil divorce: "[w]here a decree of divorce has been made absolute under this Act, either party to the former marriage may marty again. "114 The clear implication of the scenario created by the Divorce Act (1968) is that a persisting religious marriage cannot be a lawful impediment to a civil remarriage. It does not constitute a prior existing marriage for the purposes of provincial marriage solemnization acts.

This situation has been reinforced throughout Canadian case law ever since divorce became an explicit, legislativdy entrenched part of the national landscape in 1968. The Jewish wife in the Morris case also happened to have been both divorced and remarried civilly according to "the perfuncroty form prescribed for use by a Judge of the County Court"11s-despite a persisting Jewish marriage. The Catholic husband, in Justice Guy's example, is not made liable to polygamy and bigamy charges by remarrying civilly while indissolubly married to another

113. 'I"lm poiition underUnes the case that has been made out, above, that rdigious marriages arc clvU nullities.

114. Divorce An (1968), supra note 8, So 16. This language, whith ~Jicidy allowed all Canadian tesidcnll to xcmaay c:iviI1y after a civil divorce. has been removed from the Divo"11 An (1968) and replaced with similar phrasing. However. the phrasing does not clearly aniculatc the univcrsaI and exclusive opcrarlon of state-bascd divorce law. Compare the Di,Hnw An (1985). supra nOte 101. IS. 13 ("On taking effect, a divorce granted under this Act has legal effect rhroughout Canada"), 14 ("On taking effect. a divorce granted under this Act dissolves the marriage of the spouses"). Despite the di1rcrc:nce In phrasing. the common law that has emerged around both Acts nevertheless cements the clear demarcation between 'official" and "unllfficial" law. A religious divorce. or its absence, remains unable: til create or prevent the formation of a subsequent civil marriage.

115. Morris. supra note 109 at paza. 50. For an outUne ofOntario's ·pcrfunctoty form" of toatriagc solemnization. sec MamaX' Act, supra note 81. So 24(1)-(2) (allowing a judge or a justice of the peace to perform the marriage "between the hoUlS of 9 o· clock in the morning and 5 o'c:Ioc:k In the afternoon").

342 (2009)47 OSGOODE HALL LAW JOURNAL

partner according to Catholic laW.ll6 Otherwise, the Catholic wife's challenge to the authority of the court in divorce matters (i.e" an attempt to displace the general divorce law with the law of a particular religion) would be effective. Justice Guy is clear that her plea would not have that effect.!" The state cannot create a unified and exclusive jurisdiction fot divorce law that thereafter allows Catholics lawful access to civil remarriage upon their civil divorce, and then prosecutes them criminally for doing what they-and all other citizens--are permitted to do through a conjunction of federal divorce legislation and ptovincial marriage-solemnization legislation.

The logical implication is that Canada tolerates informal bigamy through its tolerance of the simultaneous existence of a civil marriage to one party and a religious marriage to another, particularly in cases where the civil marriage follows the religious marriage. Furthermore, a. clearer implication of the post-Divorce Act (1968) situation is the jurisprudential exception, carved out for religious marriages. to the Criminal COM prohibition against "any form of polygamy."1IB Just as "any form of polygamy""' is rendered precarious by this state of affairs, the phrase "any conjugal union. whether or not it is recognized as a binding form of marriage"120 is rendered ambiguous. Are not Jewish and Catholic marriages both forms of conjugal union? What, then, can this phrase mean if those two forms of marriage do not qualify?

It is difficult to justifY a sequential distinction between the religious marriage that is followed by a legitimate civil marriage to another person. and the civil marriage that is followed by an illegitimate (criminally prohibited) religious marriage to another person. If the policy justification of the bigamy provision is to ensure that the status of civil marriage is not muddied by the simultaneous existence of two forms of marriage. then surely there is no difference between the two scenarios. They both confound the civil consequences of civil marriage, leaving unclear the division of property that has been accumulated over the course of the relationship. They also leave uncertain each partner's separate entitle-

116. CoJa Iuris Cmwnki 1983 Code c. 1141, online: <hnp:l/www.intratcxt.tOmIDCI'/ ENGOOI7/_P43.HTM> (-A ma.trlagc which Is ratified and tOnsummated cannot be Wssolvcd.byany human power or by any cause other than death").

117. Morris, supra note 109 at para. 331.

118. Criminal Code, supra note 13, s, 293(O(i) (as amended by RS., Co C-34, So 257). 119.Ibill.

120. Ibid.

DRUMMOND, POLYGAMY'S INSCRUTABLE MISCHIEF 343

ment to Spousal suppon. and which spouse can claim third-party benefits, if any (such as standing in wrongful death suits or immigration sponsorship).

Canadian law has already accommodated the particularities of Jewish and Catholic family law by ensuring that neither group will suffer the indignity of criminal prosecution due to the interaction of the civil divorce law and the criminal bigamy law. The state clearly allows plural marriages to exist for Catholics and Jews (i.t., a persisting religious marriage with a new civil marriage to a separate partner). It is hard to see why other types of plural marriage deriving from this combination of religious and civil law are not uniformly acceptable. Once provincial marriage (solemnization) acts become indifferent to some cases of two "forms of marriage"!" to different spouses. they have no principled way of distinguishing between any combination of a single civil marriage to one person combined with a religious marriage to another. A religion-neutral formulation would have to be formulated, such that an exception for aU religious marriages would be carved out of "any kind of polygamy" and "conjugal union."122

This religion-neutral interpretation of both the bigamy and polygamy provisions would put all religious marriage laws on the same footing as Jewish and Catholic laws. Such an interpretation would also be consistent with the rest of Canadian law, which regards religious marriages as nullities, and also With the Civil Marriage Act, which defines marriage only for civil purposes. For these civil purposes. bigamy can continue to be read as prohibiting every person. who. is civilly married, from going through another civil marriage with another person.

In light of the variety of ways in which plural religious unions are permitted in Canadian law, it is hard to single out exactly what residual harm is left in the polygamy section. We have already seen how family law. since the late 19605, has eviscerated bigamy and polygamy of a fair deal of common-sense meaning. following Lamer's injunction to apply the void for vagueness doctrine to judicial decisions beyond the bare words of a statutory provision. The next section of this article will demonsttate the st:rUggle of articulating the specific criminal mischief (as described in criminal law jurisprudence) that these Criminal Code provisions aim to circumvent.

121. Sec CriminJ OJt/e, supm note 13, 15. 290, 293(1)(i) (as amended by RS., Co C34, s. 257).

122. /hili.

344 (2009) 47 OSGOODE HALL LAW JOURNAL

IV. ADULTERY AND UNMARRIED COHABITATION

In Ught of both the legal and the sociological developments that have emerged since the enactment of the polygamy and bigamy provisions, the standard for what constitutes these particular crimes has become c:x:ceedingly difficult to articulate. This difficulty arises out of the construal of religious marriages as nullities, and the interaction between the Divorce Act (1968), religious law, and the Crimi~ Code's Offences Against Conjugal Rights.l23

The difficulty in pinpointing the crimlnal mischief in polygamy also arises from the paucity of cases that have been prosecuted under the provision since its inception. the most notable of which involved an Aboriginal man (]Jtar~ Shin Bont), and the other an "adulterous relationship. "124 The c:x:rraordinarily broad interpretation of conjugal union in Bear's Shin Bon« needs to be squared with one of the other cases where the polygamy provisions were prosecuted, such as the 1937 case of R v. Tolhurst and Wright. Since this case makes up the rest of the sparse, recorded case law on the polygamy section, we must turn to its antiquated parameters in order to decipher the internal logic of the offence over the flrst century of its presence in the criminal law. The striking lack of coincidence between the polygamy jurisprudence and contemporary legal understandings of the fiunily in Canadian law underUne how much dust has settled on this unused section of the Criminal Code.

In the Tolhurst and Wright case, James Tolhurst was civilly married to one woman and committed adultery with May Wright, who also happened to be civilly married to another man. Both Tolhurst and Wright were prosecuted for polygamy. In ruling out a conviction, the judge determined that an adulterous

123. 16itJ. (encompassing both bigamy and polygamy).

124. I will focus principally on the: TolInmt tmd Wright declslon from 1937, as both, when read In conjunction with fami1y law developments since the DillOm.Aa (1968). amply show the incoherence of the polygamy provisions. See Bur's Shin Bone, supm note 71; R. v. TIlIInmt tmd Wright, [1937] 3 D.L.R. 808 (Ont. C.A.) [TolInmt tmd Wrightl. For other examples of the scanerc:d (and genc:rally cwsory) polygamy and bigamy cases. see Nan-EQuis-A-Ka, supra note 74; R. II. Lt6rit (1891), 7 M;L.R. Q.B. 211 (Que. C.A.); R. II. Liston (1893). Toronto Assizes (unreported), cited in W. E. Raney, "Bigamy and Divorce" (1898) 34 Can. L.}. 546 at n, (b); 'J1Je I<1ng IJ. john HArris (1906) 11 C.C.C. 254 (Que. C.S.P.);Dionne II. Ptpin (1934), 40 R. de jur, 443 (Que. S.C); R. II. Clarke (1959),124 C.C.c. 284 (Man. CA.); R. II. Moon. [2001] O.}. No. 4513 (Ont. Ct. }.); R. II. Moustafa, [1991] O.}.No. 835 (Ont, Ct.}. (prov. Div.»; R. II. Sauvi, [1997] A.}. No. 525 {Alta. Provo Ct. (Crim. Div.»; andR.lI. YllUng, [1965] O.}. No. 498 (Ont. C.A.).

DRUMMOND, POLYGAMY'S INSCRUTABLE MISCHIEF 345

relationship is not a conjugal union. Conjugal unions are only created if they are "in the guise of marriage";l25 otherwise they are simply unions. In other words, adultery is consistent with monogamy.

This reading of adultery is commensurate with contemporary attitudes in family law about adultery emerging on the margins. Courts appear poised to award spousal support to mistresses in long-term intimate relationships with men who are civilly married to other women, recognizlng, for civil putposes, the possibility of multiple simultaneous spouses and the attendant economic vulnerabilities that arise from these relationships.l26 In NOUMlt v. Town Esta#,127 the Ontario Court of Appeal awarded the long-term mistress of painter Harold Town a constructive trust in her consort's property, despite his equally long-term marriage to his wife.128

Indeed, the contemporary conception of how far an adulterous relationship can be stretched without becoming "any kind of conjugal union"l29 under the polygamy section underlines how contorted the distinction between the two remains, such that the common phenomenon of adultery continues to remain outside the penumbra of criminal sanction. In Louis v. Lastman,13D for example, a civil suit for retroactive child support was brought against former Toronto Mayor, Mel Lastman, by his two biological children born to his mistress. Lastman was never charged under the polygamy section. Despite being married himself, Lastman carried out a fourteen-year relationship with a married woman who he had intimate relations with on a regular basis; spoke with on a regular basis, traveled with (staying in motels and resorts around the world), and shared comfort, care, and intimate confidences with (the woman having made herself available to him for emotional support and affection).131 The nonprosecution of this case under the polygamy section underlines how far an intimate relationship can go without being considered conjugal under the Criminal Code. If none of these behaviours rises to "any kind of conjugal

125. Tolhurst tttuiWiight, i6iJ. at para. 4.

126. See Mahoney II. Jang (1998), 39 R.F.L (4th) 361 (One, Ct. J. (Gen. Div.»; Sturgess II. Shaw

(2002), 31 R.F.l. (5th) 453 (Ont. Sup. Ct. J.).

127. (1997), 30 R.F.l. (4th) 107 (Ont. CA). 128.16iJ.

129.16iJ.

130. [2001] 18 R.F.l. (Sth) 311 (Ont. Sup. Ct. J.) [Louie].

131. 16iJ.

346 12009) 47 OSGOODE HALL LAW JOURNAL

union"132 under the Criminal Code. the criminal mischief of polygamy becomes all the more inscrutable.

Drawing on the sparse jurisprudential guideposts of cases like Tolhurst and Wright in an attempt to arrive at a principled definition of polygamy under the Criminal Code. it might appear that the mischief in the polygamy provisions involves a party sustaining not only a civU marriage. but also a simultaneous long-term marriage-like relationship-a type of relationship not unlike the one that persisted in Louie. In other words. one might suggest that Tolhurst and Wright stands fot the ptoposition that a brief sexual fling with one party. while being civilly married to another. is not going to attract the concern of the polygamy provisions. while living together as husband and wife (as Beat's Shin Bon~ did) with two different women at the same time is. in &ct. going to give rise to such a concern. The real mischief, on this basis. is maintaining a home and a conjugal Ufe with one spouse. while being civilly married to another.

This suggestion for a principled civil definition of polygamy is not supported by the facts of Tolhurst and Wright. Not only did Tolhurst Uve with Wright "as man and wife. "133 they also had four children together. They might have been commltrlng mtrtadultery vis-a-vis their civil marriages, but their relationship could not flt more squarely within the current deflnitions of common law spouse. In Ontario. for example. that deflnition is construed as cohabiting together in a conjugal relationship for a period of not less than three years or in a relationship of some permanence if both ate the parents of a child.134 Wright bore a minimum of four children and raised them with Tolhurst, which meant that not only were Tolhurst and Wright in a relationship of some permanence with a chUd, they also surpassed the criterion set by most provincial famUy law legislation for childless couples (i.e., when the fout nine-month pregnancies are added up, leaving aside any associated years of child rearing). which alone accounted for thiny-six months (i.e •• three yeats).

According to the facts of T()lhurst and Wrigh~d the logic that ensues from those factS-statutory unmarried cohabitation is not "in the guise of marriage."I35

132. Criminttl Code, SUPT4110te 13. s. 293 (as amended by RS., Co C-~. s. 257).

133. TolInmt tmd Wriht, supTa note 124 at para. 1.

134. F411Iily lAw Art, supra Dote 77. S, 29.

135. TolInmt tmd Wright. SUpT4 note 124 at para. 4.

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 347

nor in a form of "conjugal union,"l36 nor "any form of polygamy"137 for the purposes of the po~y provisions. Instead, long-term unmarried cohabitation to one spouse, With or without children, appears to be consistent with monogamy to another. Living in unmarried cohabitation while being civilly married to another does not constitute polygamy. A fortiori, if simultaneous unmarried cohabitation and civU marriage to different people do not court the polygamy provisions, two simultaneous cohabitational relationships will not either. The inexorable logic of the extant criminal cases on the polygamy offence therefore seems to be that Canadian law appears to tolerate plural unmarried cohabitation.

The criminal law judgment in Tolhurst and Wright is clearly out of step with contemporary legal understandings of cohabitational rdationships.Where the judge in Tolhurst saw no marriage-like relationship in an enduring adulrerous one, even the Criminal Code now defines "common-law partners" as those who cohabit in a conjugal relationship for a period of at least one year.l38 The emphasis onformal conjugality in the Ontario Court of Appeal in 1937 has now been turned on its head, such that the formal conjugality of civil or religious marriage is irrdevant in law, and the fUnctional conjugality of the union is the locus to which courts must tum to in order to determine the mischief of polygamy. Again, the concept of conjugality bears the full weight of the offence of polygamy-a weight that is too precariously perched and cannot support itself.

Before finally considering this heavUy burdened concept of conjugal union, there is a cognate area oflawwotth canvassing that also speaks to Justice Lamer's requirement that. vagueness be examined by looking beyond the bare words of the statutory provision to the provision as it is interpreted and applied in judicial decislons.l" This comer of jurisprudence involves the question of criminal indecency in the context of polyamory.

v. SEXUAL MISCHIEF

If, on the dated authority of Tolhurst and Wright, it is not living together with one person while being civilly married to another thar is problematic, it might

136. Criminal CrxIt. mIra note 13. So 293 (as amended by R.S., Co C34. So 257). 137.1bitJ.

138. Criminal Code, SIIpra note 13, So 2.

139. Prostitution. &/rmKe. supra note 11 at para. 40.

348 [2009) 47 OSGOODE HALL LAW JOURNAL

appear that the mischief in the polygamy provision is concerned with the prospect of a pany having ongoing simultaneous sexual congress with one party, while being civilly married to another. However, recent polyarnory case law affirms thar sex with one parmer, while being civilly married to and in a sexuallyactive relationship with another, does .not constitUte polygamy.

In the 1982 case of R. v. MJlSon,'40 an Ontario court held that 'swinging' (spouse-swapping) parties, in a private non-commercial setting, does not constltute an indecent act for the purposes of the Criminal Code. Husbands and wives (common law and civilly married) can freely invite other sexual partners into their homes for the pleasure of either or both. The acceptability of home-based swinging to prevailing community standards was complemented at the Supreme Court by the acceptability of swinging in bars. In the 2005 case of R. v. Labaye,141 the accused operated a club in MontrCal, the purpose of which was to permit couples (married or not) and single people to meet each other for group sex. Labaye was charged with keeping a common bawdy-house under section 210(1) of the Criminal Code. The question of whether swinging is consistent with polygamy has not been tested directly by the polyamory cases. However, the fact that the sec has found that swinging in private homes and clubs does' not amount to a criminal act speaks to whatever mischief can be discerned in the polygamy provisions.

The offence of keeping a common bawdy-house is defined by reference to the slippery concept of "indecency. "'42 The central issue in Labaye was whether running a club for group sex and the swapping of partners constlnrted the facilitation of acts of indecency. Setting a threshold for indecency became the fulcrum of the case, and the concept of harm is at the centre of the mischief of indecency. In acquitting the accused, the sec made clear that the Crown had failed to establish thar any hann bad been committed, the threshold for which was set by determining whether the conduct confronts the public with behaviour that interferes with their autonomy and liberty, pte-disposes others to anti-social behaviour, or

140. (1982). 59 c.c.c. (2d) 461 (Ont. Provo Ct. (Crlm. Div.».

141. [2005] 3 S.c.R. 728 [Lab4ye].

142. See CrimintJlCodt.JJlpra note 13. s. 210(1) (dcalIngwith theofl'encc ofka:pingu;ommon "bawdy-bouse." which, in tum, is de£lned ln s, 197(1) u a place kept or occupied. or resorted m -by one or more persons for the purpose of prostitution or the praaicc of aaI Qf

indec:enqI').

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 349

physically or psychologically harms the people involved in the cohduct.'~ The harm also needs to be incompatible with the proper fimcdoning of society.

In the case of swinging, in so fur as the activity was taking place in a private setting, the threshold of harm was not met. The privacy, behind which group sex was veiled, eliminated potential harm to the liberty rights of other citizens through confrontation. It also eliminated fears about the fostering of anti-social behaviour in others, which "can arise only if members of the public may be exposed to the conduct or material in question."'" On the question of whether swinging is incompatible with the proper functioning of society, the court also invoked the privacy of the behaviour to inoculate the activity from posing a risk of harm to society's proper functioning. The court further clarifies that "[v]ague generalizations that the sexual conduct at issue will lead to attitudinal changes and hence anti-social behaviour will not suffice."'45 Mr. Labaye was not guilty of indecency because .he made sure that only willing people would see the sexual conduct.

The facts of Labaye speak to the types of plural and simultaneous sexual partnering that are generally not the norm within polygamous unions. A fortiori, the judgment indicates that whatever sexual activity occurs between consenting adults within polygamous unions also fails to meet the threshold of harm requisite for indecency, most particularly because polygamous unions, like marriages in general, conduct their erotic lives in private. Further, recapitulating the Court's assessment of harm in the context of polygamy, "vague generalizations"'" that polygamy "will lead to attitudinal changes and hence anti-social behaviour will not suffice"'47 to establish the harm of polygamy.

The Lahaye case appears to speak definitively to any conjecture that the criminal mischlef in polygamy is related to indecent sexual acts. Multiple simultaneous sexual partners (married or otherwise) are not indecent in criminal law; multiple sequential partners (married or not) within plural unions then fall substantially short of the' threshold of harm. The polyamory cases therefore go some distance to further eviscerating the content of the polygamy provisions.

143. 14bay" suprll DOte 141 at para. 62.

144. IhiJ. at para. 47.

145. IhiJ. at para. 58.

146. IhitJ. at pan. 58. 147.IhiJ.

350 (2009)47 OSGOODE HALL LAW JOURNAL

The result in Lahaye stands for the proposition that sexual activity, in general, within polygamous unions is not the targeted harm. Consensual sexual activity between adults is covered by privacy.

In light of the foregoing analysis, it appears that the remaining hallmark of the criminal mischief in polygamy must be the situation where a person has more than one. spouse at the same time. Clearly, Swinging is not the problem. Rather, it appears to be the point at which the relationship with each sexual partner becomes spouse-like that the mischief in polygamy is activated, This identification of the mischiefgets us close to the second part of section 293- "conjugal unions" -which is the only part of the section that appears to remain standing once all of the other exceptions to polygamy have been carved out by the substratum of values that has churned up the legal landscape over the last half-century. Perhaps it seems viable that multiple conjugal unions might have a purchase in this exercise; in other words, it seems that the original drafters of the polygamy provisions nailed it when they referenced polygamy to conjugality.

It remains to be seen whether this last understanding of the mischief in polygamy holds any merit. Once the meaning of conjugal union is determined, it follows that more than one of those types of union at the same time, with separate people, will presumably represent the behaviour that criminal law forbids. This search for a deflnition of conjugal union takes us away from the criminal law, which does not itself deflne what constitutes this form of relationship. To get a clear sense of what is meant by conjugality, we need to return to family law, which has spent the last forty years trying to clarify the term since the Dioarc« Act (1968) opened up a revolution in the ways that the "family" is legally structured and sociologically conceived. It is in f.unily law that both statutes and cases have struggled to clarify open-ended statutory language through judicial interpretation.

VI. CONJUGAL UNIONS

Let us leave aside for a moment the unquestioned assumption that we have good reason to care so much that a swinging partner stays in the bed a bit too long and whips up a batch of French toast a few times too many. Let us also ignore the unquestioned assumption that we have good reason to care even if none of the parties themselves seem to mind. In other words, let us discount the search for a principled policy justification for whatever residual understand-

DRUMMOND. POLYGAMY"S INSCRUTABLE MISCHIEF 351

ing of conjugality is left in the Offences Against Conjugal RightsUII once swinging, adultery, religious marriage. and (on the polygamy section's jurisprudence) even unmarried cohabitation are removed from consideration. The definition of conjugal union has enough difficulty on its own.

To determine whether or not someone is simultaneously in two or more spouse-like relationships, we would first need to determine what it is to be spouse-like (i.~ .• determine exactly what makes a spouse a spouse). We need a clear sense of the concept of spouse (that which is at the essence of the married relationship) in order to determine whether or not someone has multiple, simultaneous spouses and whether or not they are in a common law, religious, or civil marriage.

IdentifYing what the essence of the marriage relationship is for the purposes of determining what is marriage-like, in the absence of the actual solemnization ceremony, has proven to be an increasingly elusive quest. The institution of marriage now contains such an extensive array of variants (i.~ .• with or without children, living in the same or separate residences. with or without sexual activity, with traditional, equal. or reverse-traditional gender roles, and so on) that it is difficult to identifY anything more than patterns across a range of marriages, rather than a set of essential criteria. Furthermore, the frequency of committed relationships flourishing beyond the boundaries of civil marriage is increasing. with the result that the law has been restructured to attach similar legal consequences to both married and unmarried relarlonshlps.l"

The growing frequency at which couples are dc:clining to enter into civil marriages while persisting in committed relationships has led to a significant overhaul of both federal and ptovinciallegislation. This reform, which is meant to accommodate the aforementioned sociological shifr of the last half-century. became most pressing when it coincided with a sequence of successful gayrlghts cases that saw governments ungraciously scrambling to recognize same-

148. CriminJ Code. SIIpra note 13. ss. 290. 293 (as amended by RS •• c. C~. s. 257).

149. The 2007 Statistics Canllda report on changing f.unily demographics indicates that. between 2001 and 2006, the number of cohabiting f.uniliea in Canada grew by 18.9 per cent, five times faster than married couples, to form 15.5 per ccnr of census Eunilies in the country. Sec Statistics Canada, Demography Division. FamiIJ Portrait: Continuity and Change in Can4Jian Families tmJHinlSehiJ/Jr in 2006, 2006 ~ by Anne Mllan. MireiIle Vezina Ilc Carrie Wdls (Onawa: Minister ofrndustty. 2007) at 6.9. online: <http://dsp-psd.pwgsc;.gc:. calcoI1ectio~2007/S1atcanf97-553-X197-553-XIE2006001.pdf>.

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sex spouses without changing the deBnition of marriage. This statutory overhaul of the concept of spouse was stimulated by a series of sec cases that found that discrimination on the basis of either marital status or sexual orientation creates unconstitutional violations of the right to equal treatmc:nt under the law. Two cases in particular, Miron v. TrudeJ150 and M. v. H.,1&1led to a massive overhaul of the legislative landscape. Sixty-seven federal statutes and numerous provincial statutes were amended to ensure that unmarried cohabitants, whether in same-sex or opposite-sex relationships, would have the same rights as married spouses in both fidds of legislative activity. Legislation dealing with matters from tax deductions to pensions, death benefits to intestate inheritance, and standing in wrongful death suits to immigration sponsorship now draws upon the concept of a conjugal union in order to demarcate between those who qualify and those who do not.

The statutory deBnition of a cohabiting spouse typically stipulates a specific period of cohabitation, generally ranging from one to three years, afrer which legal consequences ensue (depending on the statute). For entry into unmarried cohabitation, the statutory period substitutes for the single event of a solemnization ceremony. Out of this definition flow legal consequences that are closdy assimilated, if not identical, to those that arise from marriage. However, it is not simply living together that attracts this marriage-like status. There is an ineffable something more that transforms housemates of one to three years into spouses.

Embedded in the deBnition of cohabitation in different federal and provincial statutory regimes is a reference to conjugality. For example, Ontario ~ Family Law Act 152 defines cohabitation as "liv[ing] together in a conjugal relationship, whether within or outside marriage."I53 Those who live together, but are not in a conjugal reladonshlp, would be disqualified or exempted from any provisions that relate to spousal cohabitation. Someone who lives non-conjugally with another (even beyond the three year mark) will not owe spousal support, will not be a pension beneficiary, will not be able to sue for the other's wrongful death, will not inherit property when the other dies intestate, and so on. Therefore,

150. [1995]2 S.c.R. 418.

151. [1999]2 S.C.R. '3 [M. II. R].

152. FamiI]LtzwAa,SfIJIT4note77.

153. /bitJ., s. 1(1) [emphasis added].

l~

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 353

this concept of conjugality has become the proxy for determining what is spouselike or marriage-like behaviour.

Presumably, the notion of conjugality would help to determine what it is to live "under the guise of marriage"l54 for the purposes of the polygamy provisions, given that the other elements appear to have been read out of them. The concept of conjugality, however, has merely displaced the difficulty of understanding what is spouse-like or "under the guise of marriage"l5S with a term that is laced with ambiguity. The legal content of the concept has been filled in by judicial interpretation, and that interpretation has changed over time.

There are two principal ways in which conjugality has been defined in common law: one is subjective and me other functional. The former is now dated and the latter is fairly confused. Both ways of construing what constitutes spouse-like or marriage-like cohabitation are canvassed in a compelling ankle by Brenda Cossman and Bruce Ryder.l54 They depIct the test for the subjective equivalence of a relationship to marriage as one hinged upon whether an unmarried cohabiting couple has voluntarily embraced such a status. The touchstone of whether the relationship is conjugal is the nature of their subjective intentions. In the case of spousal support. for example, the test would rely upon whether the couple pledged to murually support each other. IS?

This approach is now dated by virtue of the fact that courts have found it difficult to discern a common intention, either because the parties might have had different intentions, or because they lacked a clear intention at allover the course of the relationship's evolution. More significant. however, was the emergence of the pressing poUey objective to protect cohabitants (particularly women) from the economic disadvantages that arise during an interdependent relationship. These are the same concerns that allow courts to read constructive trusts into property owned by one spouse who has been unjustly enriched by the other spouse's unremunerated domestic contribution. The former spouse's subjective intention cannot be permitted to circumvent the economic interdependence and concomitant legal responsibilities that emerge from the way that the parties

154. Tl1lhunt and Wright, supra Dote 124 at para. 4.

155. Ibid.

156. Cossman Ik Ryder. aMarrlage-Like.- supra note 23.

157. Ibid.

15

354 (2009) 47 OSGOODE HALL LAW JOURNAL

structure their rdationship. Because of such considerations, the subjective test has fallen out of judicial favour.

The functional equivalence test has emerged in tandem with the demise of the subjective approach. This approach to the determination of whether a relationship is marriage-like relies upon an identiflcation of the basic dimensions and functions of a marital relationship to which the rdationship in question is compared. The 1980 Molodowich v. Ptnttinm1S8 case consolidates the functional attributes laid out in prior case law. In M v. H., Justice Cory recapitulates and endorses the Molodowich approach when he notes that "the generally accepted characteristics of a conjugal relationship •.• include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as- the societal perception of the couple. "159 However, not all of these dements will necessarily be present in all married rdationships. The functional equivalence of conjugality with this loose agglomeration of marital attributes is problematic. Cossman and Ryder underline these drawbacks and argue that the concept of functional equivalence to marriage has grown increasingly tenuous in the light of jurisprudential developments.

The fust attenuation of the test derives from the dissociation of sexual relations and Conjugality-popularly thought to be the latter's sine qua non. As Cossman and Ryder note, Canadian judges have begun to And conjugality in the absence of sexual relations, Alongside Justice Cory's views on this matter in M v. H., they cite the 1990 Richardson v. Rithardson16D case, in which the judge held that

The panies may, for a number of reasons, such as age, illness or indifference, choose not to have sexual relations but still live together and hold themselves out to be husband and wik in other respects. }lor that reason, it is my view that the trial judge was wtong to have made sexual relations between the parties a requisite fOr a conjugal reiationShip.16l

While this dissociation of conjugality from sexual relations leaves the functional equivalence test baffling for family law, it also makes it that much more difficult to discern the mischief in the polygamy provisions.

158. (1980), 17 R.F.L. (2d) 376 (Ont. Dist. co.

159. M. II. H., suprll DOte 151 at para. 59.

160. Rithtmlson II. RkhtmJson (1990), 107 N.B.R. (2d) 49 (C.A.).

161. [bit/.

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 355

Another drawback of the functional test-not just for a finding of polygamy, but for aIllegiSlativc: regimes that rely upon the concept of C()njugality-is the privacy-violating nature of the inquiries that courts must pursue in order to establish it. This is most evident with respect to the dimensions of sexual and personal behaviour to which Justice Cory alludes. Although sexual relations may not be necessary to a finding of conjugality using the Molodowkh criteria, the functionalist approach has led courts to engage in a strikingly intrusive (if not unseemly) set of questions. The judge in the 1978 case of Stoikiewicz v. Filas162 illustrates the type of questioning that proves the point about unseemliness:

Q: Mrs, Stoooewicz, did you live with Mr. Filas as husband and wife? A: That's the way it was.

Q: Did you share the same bedroom! A: No.

Q: I see. Did you have sexual relatioas with each other? A: Yes.

Q: Was it frequent or just occasional? A: Occasional. From time to time.

Q: Did you cook his meals?

A: I cooked for him.l63

The actual finding in Stokinuicz was that a conjugal relationship did not exist, despite the answers to these questions. More to the point is the nature of the inquiry upon which the court had to embark in order to establish this finding. Taking into account that the polygamy provisions permit swinging and adultery, it is easy to imagine that the hair-splittlng distinctions between this monogamy-commensutate behaviour, and sexual and personal relations that are not monogamy-commensurate, could only become more unseemly and offensive.

It is worth reiterating at this point that, aside from the concern about the unseemliness and intrusiveness of inquiries into the kind of sexual activity that goes on behind the doors of polygamous unions, this line of questioning is verboten for establishing the crime of polygamy. As argued above, it follows from Labayt that sexual activity with multiple consenting partners (including spouses), provided that it is conducted in private, does not constitute a criminal harm in

162. StQiIdewicz II. Filat (1978),7 R.F.L. (ld) 366 (Ont. Fam. Ct.).

163. Ibid. at para. 3.

11

356 (2009)47 OSGOODE HALL LAW JOURNAL

polygamy. If swinging and private orgies with (or without) one's spouse are not indecent, then surely there is nothing in the sexual activity of polygamy that rises to an act ofindecency.

While the job of a family law judge may be made harder by the reference to sexual activity as a recurrent commonality in conjugal unions, the job of a criminal law judge looking for proof of conjugality for the purposes ot "any conjugal union"l64 is made Ughter by Lahaye's elimination of consensual adult sexualllCtivity from the set of mischiefS that might constitute the criminal act of polygamy. The elimination of sexual activity from the repertoire ofharms embedded within "any kind of conjugal union with more than one person at the same time"l65 further renders conjugality into a vapidity for criminal law.

There is one further drawback pointed out by Cossman and Ryder that perhaps demolishes the USe of conjugality far more swiftly for the polygamy provisions. As they note, none of the criteria in the functional-equivalence test are essential. The test does.not provide a kind of bright line distinction between conjugal and non-conjugal relationships; Citing Justice Cory, they note how the test has become extraordinarily open-ended:

In order to come within the definition, neither oppositC-6CX couples nor same-sex couples arc required to fit precisely the traditional marital model to demonstrate that the relationship is conjugal. ... Coutts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will varywiddy.l66

While the flexibility inherent in this test allows courts to find conjugality where an exact equivalence with an ideal model of marriage cannot be found, the result is an astonishing lack of clarity that impedes the ability of couples to anticipate when they do or do not qualify. As Cossman and Ryder point out: "in sacrificing clarity and predictability for flexibility and diversity, the judicial understanding of conjugality now comes close to an 'I know it when I see it' approach."!" While the conceptual looseness in the concept of conjugality may be problematic for family law, it is poised to be fatal for criminal law.

164. Crimi1llli Cod4, supra note 13. s. 293 (as amended by R.S •• c. C34, So 257).

165. Ibid.

166. M. II. H., supra notcl51 at paras. 60-61.

167. Cossman &: Ryder. "Marriagc-Ukc," supra note 23 at 299.

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 357

If the state cares enough to make a distinction between sWinging, adultery, and polygamy-so much so that it is prepared to attach the potential jeopardy of five yea,rs imprisonment to the behaviour-then a reasonable person should be able to foresee when their behaviour enters the prohibited zone. They should not have to wait upon the Intuitions of an oracular judge.

VII. VOID FOR VAGUENESS

Taking into account all of the above-mentioned statutory and jurisprudential understandings of what ronstitutes a "form of marriage, "'68 "any form of polygamy,"'6t and "any kind of conjugal union, whether or not it is by law recognized as a binding form of marriage. "170 it becomes virtually impossible to articulate what the criminal ronceprion of polygamy amounts to and what the core mischief is that underlies it. In short, it becomes vinually impossible for the provisions to constitute fair notice that particular Conduct falls within the scope of the offence.

On its own literal terms, the polyganty section has an exceptional reach in the concept of "any kind of conjugal union. "'7' However, all manner of exceptions have been jurisprudentially carved out of this spectacularly broad spectrum of relationships. What remains after the "bare words of the statutory provision"172 are understood in Tolhurst and Wright, Bear's Shin Bone, Morris, and Lastman is an incoherent misceUany of ideas that is held together by a common law thread of "conjugality," which is itself frayed and tom. This jurisprudence does not tie the concept into place when conjoined with the fact that unmarried cohabitation, adulterous affairs (both short and long-term, with and without children), and rdigious marriages are not conjugal unions for the polygamy provision, and do not serve as lawful impediments to civil marriage either.

While it is clear that no law can meet the standard of absolute certainty, the principles of both fair notice to citizens (particularly for criminal law, where individual liberty is in jeopardy) and limitation of enforcement discretion indicate strongly that the current polygamy section offends the principles of fundamental

168. Crimi1l!li Code. SIIpra note 13. ss. 290. 293 (as amended by R.S., Co C34. s. 257).

169. Ibid.. s. 293 (as amended by R.S., Co C34. s. 257).

170. Ibid.

171. Ibid.

172. ProstitutWn Reftrm«. supra note Ll at para. 40.

358 12009147 OSGOODe HALL LAW JOURNAL

justice that are set out in section 7 of the Charter. This is particularly true in light of a massive shift in the substratum of values regarding family and sexuality since the late 1960s-a substratum that is accessible to all Canadians who might otherwise lack access to the technicalities of fonnal notice. and which also provides the moral foreseeability of harm, while generating the substantive notice that inoculates legal enactments against claims of arbitrariness.'73

That the vagueness of the polygamy section is susceptible of generating a "standardless sweep"'74-and that it opens the door for "law enforcement officials to pursue their personal predilections"'75-can already be seen in the lamentable histoty of its highly discriminate use against minority religious groups and marginalized Aboriginal people. The hypocrisy of pursuing openly polygamous relationships. while leaving typically occult. long-term adulterous relationships intact-s-relationships which appear functionally to serve vety similar purposes to polygamy for men-further underlines the unprincipled motivations driving the law. Bearing in mind case law, subsequent statutory law in a range of fields, and social developments over the last century, it becomes extraordinarily difficult to state what the criminal conception of polygamy amounts to, apart from a mechanism to discipline and convict socially and politically marginalized gtoups. As a result of all of these developments. there is no way to salvage the polygamy provisions and to give "sensible meaning'?" to their terms.

If the provisions are nullified by the courts. it will be up to Parliament to devise a modified deAnition of polygamy that captures whatever acceptable mischief remains once the original objective has been excised.'77 Yet Parliament will not have a clean slare from which to create a new polygamy law. It will have to legislare on top of the landscape of the entire statutoty and jurisprudential histoty elaborated above-a histoty that would force Parliament into navigating the inconceivably narrow straits lefr behind by all of the exceptions.

173. NS P~aJ, supril non: 36.

174. PrrJstilutWn Reftrm«, mpra non: 11 at pan. 41.

175. Ibid. at para. ·40. Again, both of these dangers were critiqued in Justice Lamer', disquisition on void for vagueness.

176. Ibid.

177. Obviously, I am assuming that Parliament will not invoke the notwithstanding dause, which It did not seriously contemplate doing for same-sex marriage, and cannOt centemplate doing without violating a longstanding eu&tomary prohibition on invoking a clause that allows Parliament ro pass Icgislation that uncquhwally vi,olatl:l fundamental human rights.

~\

QRUMMONO. POLYGAMY'S INSCRUTABLE MISCHIEF 359

It seems clear, therefore, that the polygamy provisions of the Criminal Code are unconstitutional under section 7 of the Charter. What remains to be done is an analysis of whether the provision can be saved under section 1 of the Charfntan argument that is ultimately unsustainable. The section 1 analysis is important, given that one of the most common arguments made for retaining the polygamy section, despite a foreseeable violation of other fundamental rights in the Constitution Act; 1982, is that the underlying purpose of the section protects interests that are paramount in Canadian society-speciflcally, the vulnerabilities of women and children--and that entrench our international commitments under the United Nations Convention to Eliminate aD forms of Discrimination against Women (CEDAW).'78 These latter concerns are often articulated as the residual concerns upon which the polygamy section pivots. Whether these latter-day attempts to identify polygamy's criminal mischief might be sustainable under a section 1 analysis becomes a part of this article's search for coherence in the Criminal Code's polygamy doctrine.

VIII. RESIDUAL PURPOSES

An argument under section 1 of the Charter, that there is a pressing and substantial objective that should override our concerns about the violation of citizens' constitutionally-entrenched rights to liberty, may be jeopardized by the existence of the objective that originally animated the prohibition-that is, to isolate and prosecute religious minorities. The unsavory history of the sdective use of the provision against Aboriginal people supports the idea that the polygamy provision was crafted as a means of disciplining and colonizing socially and politically marginal groups. If there is an alternate pressing and substantial objective, it has to overcome the historical suffusion of the polygamy provisions with the unacceptable original objective of targeting religious minorities.

In their report to the Status of Women Canada, Bailey d aJ. argue that "[t]he prohibition's ecclesiastical origin as well as its express reference to Mormons suggests that its pressing and substantial objective is to serve a religious purpose ... m Even if the more contemporary justification for a prohibition on polygamy stems

178. ConrJmtion on the Elimi7l/lliqn oj' AJlForms oj'lJiscriminAtion against We>mm, 18 December 1979. 1249 U.N.T.S. 13 (entered into force 3 September 1981). online: dlttp:llwww2.ohcltr.orgfenglishl1aw":cdaw.htm> [CEDAW).

179. Bailey It Ill. sUpra note 3()at 23.

360 (2009141 OSGOODE HALL LAW JOURNAL

from concerns about the vulnerabilities of women and children. "the Supreme Court of Canada will not entertain shifting purposes. meaning that the government can rely only on the purpose that animated the provision when it was enacted. "180 They argue that. in the face of a finding that the prohibition on polygamy infringes the section 2(a) right to freedom of religion. the Crown will have difficulty cst2blishing that the impugned provision is of sufficient importance under section 1 to warrant overriding a constitutionally protected right. The original religious objectives of the Ieglslarlcn=-even if now suffixsed with a concern for the equality rights of women-are unlikely to be considered pressing and substanrial enough, as the law of this country has come out from under the shadow of Christianmatriage.

This argument about the shifting purposes of the polygamy provisions may not ultimately hold when implying, as it docs, that Parliament is precluded from embodying new social objectives in modified, although used, legislative flasks. To be compelling, this argument would need to establish that religious objectives continue to animate the legislation. The fact that the Criminal Code was amended in the 19505 to remove explicit references to a now prohibited religious objective would suggest that the original antiMormon animus of the section has been expunged.

However. those who argue that the original religious purpose has been overtaken by the pressing and substantial purpose of protecting vulnerable women and children within plural unions181 may face just as difficult a challenge in establishing that the government was preoccupied with this guiding concern in 1954.182 The amendment, which dropped the reference to Mormons in 1954, was part of a general overhaul of the Criminal Code in the early 1950s in order to modernize its content and remove antiquated furmulations and offences. h per the reasoning in Big M. deciphering the purpose of legislation hinges upon "the

180. Ihid at 23. For their "shifting purposes" argument, Bailey et sl: rely upon both R II. Big M DrugMmLtJ.. [1985] 1 S.c.R. 295 [Bi"M] andR II. Zu,wl, [1992] 2 S.C.R. 731.

181. See Bala, suprll note 32; Cook &: Kelly. SUprll note ·42.

182. Under the first branch of the: Oakes test (to determine wblch daims about limiting rights are justifIable: under section 1 of the Charter). "The CtmaJian CJmneot. ufRiglm IlIIIiFrettloms guarantca the: rights and &c:c:doms set out In it whjcct only to such RasolIabIe limits prescribed by law as can be: demonstrably justified in a free and dmOCMic society.· CJmneot.. suprll note: 5. s, 1. See also BaJa, ibid

DRUMMOND, POLYGAMY'S INSCRUTABLE MISCHIEF 361

Intent of those who drafted and enacted the legislation at the time. "183 The Crown is precluded from asaibing a new purpose to legislation in the course of Charter litigation. Arguments that reference a child and woman-centred preoccupation underlying section 293 wUl need to square this conceptlon of polygamys paramount harm with legislative history.

The legislative history of the polygamy section may, in any event, be of diminished importance with respect to its constitutionality. Even if the guiding concem of protecting women and children were acknowledged to be its pressing and substantial aim, the contemporary objective of protecting them may in fact be far more easily and fairly met through other laws and social policies that are more rationally connected with this goal than through the crimlnalizatlon of polygamy. The extraordinary vagueness and overbreadth of the polygamy provision generates an extremely high threshold that must be met in order to justify the violation of section 7 liberty rights. Further, this threshold is reinforced by the abundance of ways that are available to meet the objective, such that no harm is done to rellglous freedom, liberty, equality interests, or fundamental justice. Even if the protection of women and children was acknowledged to be the section's overarching purpose, the question that remains is whether or not the criminal prohibition of polygamy is a. proportionate response to these concerns.

I will concede, because I readily perceive it to be true, that this is not a frivolous objective with little or no social impon. The protection of vulnerable women and children from the asymmetries inherent in plural marriages (which are virtually always polygynous rather than polyandrous) is an objective that has accrued a great deal of scientific suppon in the last several decades. There is an abundance of reports from around the world that suppon the voices of women who have fled from, or feel trapped within, polygamous unions.l84 Further, this objective is embodied in the CEDA W. In its General Recommendation on Equality in Marriage and Family Relations,l85 CEDA W urges that "[pJolygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and

183. Big M, supra note 180 at para. 91.

184. For a panicularly committed presentation of this CISC, sec Cook Be Kelly. supra note 42. For a review of this literature, see also Bailey d II/.. supra note 30.

185. CEDAW. supra note 178 at General Recnmmcndation No.21 (13th session. 1994), online: <http://www.un.oryJwomcn.watchldaw/cab.w/recommcndatiomlrecomm.htm>.

362 (2009147 OSGOODE HAlL LAW JOURNAL

financial consequences for her and her dependants that such marriages ought to be discouraged and prohibited. "186

Canada, as a party to the CEDA W, has committed itself to "take all appropriate measures to eliminate disaimination against women in all matters relating to marriage and family reladoas,'?" How. then. can Canada uphold this international commitment and uphold its legitimate aspiration to liberate women and their dependents from the serious emotional and financial consequences that can arise from polygamy? Is criminalizing plural marriage the only means of meeting that international commitment? Is it the most efFecrive?

As has already been argued. the overbreadth of secrion 293, .in catching "[elvery one"l88 who engages in a plural union, is radically ar odds with the feIIiinist objective; women in plural unions are subjecr to being tom away from their children for up to five years in a federal penitentiary, while their children are deprived of a mother for a yawning black hole of time-jwtas they stand to be deprived of their fathers. The stigma of criIIiinal prosecution and conviction (and in the case of Bountiful, public scrutiny and shaming in the national media) can only add to the burdens of the very parties that the law purports to protect. Further, the deprivation of either one or both of the parents leaves children poised to experience extreme levels of emotional and financial turbulence. The criminalization of both parties to the union also adds a thick layer of wariness and caution to any aspirations that such women might entertain in anticipation of the state's safety net capturing their fall, should they exit the relationship.

These contradictions between the polygamy provision and its purported objective strongly suggest that the criminalization of plural unions is not the least drastic means for meeting that objective. IS? Are there other, less punitive means of meeting the objective of lightening the miseries and inequalities to which women in plural forms of marriage may be prone? If they exist, then the minimal impairment test of section I. of the Chatterwill not be met by the current polygamy provision •. Let me suggest that such measures are in abundance. many of which are already in place and merely awaiting the removal of criminal stigmatization

186. Ibid. art. 16(14).

187. Ibid.. art. 16.

188. Crimi714l CHe. IIIpr4 note 13. 5. 293 (as amended by R.S .• c, C.34. s. 257).

189. For the requirements of the minimallmpalrment test, see Chi#ter. IIIpl'll note 5. s. 1.

DRUMMOND. POLYGAMYS INSCRUTABLE MISCHIEF 363

in order for women in oppressive plural unions to exit the relationships with the same confidence as women in oppressive monogamous unions.

A substantial movement towards the objective has already been made by ensuring that civil consequences, such as spousal support, flow from the factual reality of all relationships that endure for the statutory period of cohabitation for common-law spouses (generally one to three years, depending on which federal or provincial statute is in play, andlor for relations of some permanence with a child). Whether or not a union is polygamous, these entidements flow from the duration of the relationship. This tk facto entidement to spousal support also computes with the new Federal Spousal Support Advisory Guiiklines,19O which roots the entitlement to spousal support in the duration of the relationship and the parenting obUgations that parties incur. n1

Another substantial movement flows from the fact thar child custody and child support are .not dependent upon the legitimacy of the form of marriage. Family law legislation across Canada's provinces brought about an end to the distinction between legitimate and illegitimate children in the 1970s. Child support obligations are linked to the biological relationship between the parents and their children, as well as to the social relation between children and those parents who stand in loco parentis (in the place of a ~t).192 The fact that parties to a polygamous union are entided to use the constructive-trust doctrines to establish a beneficial interest in accumulated marital property, if they can establish a contribution to it, makes it easier for all women to exit degrading and abusive relationships, whether or not those unions are polygamous or monogamous.

In the definition of those spouses who have access to the default property regime of married spouses, legislation such as the Ontario Family Law Act already includes marriages that are actually or potentially polygamous when celebrated in a jurisdiction whose system of law recognizes them as valid. 193 If courts (which have yet to weigh in on what this provision means) were to interpret the section to mean that all polygamous marriages, whether or not they are formed in Canada, give rise to rights in the default statutory marital-property regime, this

190. See Department ofJumcc Canada, SpOUS(I/ SuppqrlAbisory GuiJeIi_ by Carol Rogerson lie Rollic Thompson. (Toronto: Family, Children and Youth Section. Department ofJumcc Canada, 2008). online: <http://www.Jumcc.gc.ca/CIIg1pi1pad-rpadlrcs/spaglind~html>.

191. IIJid.

192. DiwrceM (1968). supra note 8. s. 2(2)(a).

193. F4VI!ily Law/J&t. supra note 77. s, 1(2).

364 (2009) 47 OSGOODE HALL LAW JOURNAl,.

would bolster the ability of women in polygamous unions to leave without confronting the debilitating fear of poverty.

It would also help to eliminate the inequities and grave emotional and £1- nancial consequences that are suffered by the. women in polygamous marriage relationships. if provincial social-assistance rates were raised to such an extent that abused women across Canada would no longer feel that remaining In an abusive relationship would be preferable to the indignities and acute deprivations of welfare.'" In addition. all oppressed wives. whether in common law relationships. monogamous marriages. or polygamous unions. would be rescued by the rising tide of a serdy needed national daycare system that would permit siilgle mothers to work (or tram fur work), while leaving their young children in affordable and adequate child-care arrangements,

All of these measures (and many more) would go, and have gone, a substantial way to meeting Canada's commitment under the CEDAW to "take all appropriate measures to eliminate discrimination against women in all matters rdating to marriage and family relations,"195 regardless of whether those women have come from plural or monogamous unions. However. there is another measure that Canada could take that would entrench-in a more global. albeit symbolic, war-its specific international commitment with respect to polygamy. Parliament could do so in a manner that might well skin the constitutional problems that plague the polygamy provisions: they could leave the Civil Marri4V Act in place, untouched, and modify the bigamy provisions, to unequivocally state that the only form of criminally prohibited plural union is that of two simultaneous civU marriages to different partners.

The Civil Marri4v Aet already only refers to marriages "for civU purposes,"!" and confines them to monogamous unions. The bigamy provision already appears, on a reasonable interpretation, to uniqudy prohibit everyone who is civilly married from entering intO another civil marriage with another person. The section needs only to be cleaned up in order to explicitly meet this objective-that is, the objective of maintaining clarity around the status of civil marriage. This latter

194. See Janet Mosher d aJ., "Walking on EwhdJs: Abused Women's Experiences of Ontario's Wel&re System - Flna1 Repon ofResean:h Findings from me Woman and AbI!Se Wel&re Research Projccx- (5 April 2004), online: <hnp:llwww.yoiku.ca/yorkwcblspcciallWel&re_ Repon_walking_on_eggshdlsJinaLrepon.pdf>.

195. CEDAW.suptllnote 178.

196, Ciuil MllrriIIgr Aa, supra note 34. s, 2.

DRUMMOND. POLVGAMY"S INSCRUTABLE MISCHIEF 365

objective may continue to have value if Canadians continue to prefer (as they appear to do by an increasingly narrow margin) 197 civil marriage to unmarried cohabitation. All bigamous civil unions would be captured by this newly clarified bigamy provision-leaving things such as religious marriages, adultery, and mistresses alone, as none of the state's business. Spouses in each of the latter arrangements would remain capable of acquiring benefits under the status of unmarried cohabitation or: statutory and equitable regimes.

For good measure, Parliament could also finally occupy the jurisdictional field it was given in 1867 and stipulate a minimum age requirement for consent to marriage, whUe enttenching the common law requirement for bilateral consent as a necessary condition between marriage partners. These legislative medlflcations would reflect the prevailing Canadian sensibility about the precious, yet vulnerable, integrity of young people and the vital importance of women's agencyw'ithin married life. They would find further legitimacy in the broader social policies that have consolidated among the community of nations. Canada's commitment to this larger community is embodied in its fotmal assent to the CEDA W provisions that require the government to ensure that women and men .have: "(a) the same right to enter marriage, (b) the same right to freely choose a spouse and to enter into marriage only with their free and full consent."198

All of this is contingent on how the Canadian State continues to regulate what has become an almost purely symbolic institution: civil marriage. As the state now recognizes all of the forms of economic interdependence formally captured by the institution of marriage (e.g., unmarried cohabitation, constructive trust, and third party rights and obligations relating to cohabiting spouses), only residual amounts of light can be seen between. civil marriage and unmarried cohabitation.l99 The gesture of continuing to legislate and regulate civil mar-

197. Quebc:c Is now Ieading.in the direction away from the prefcmt.ce for civil marriage over 1,IIlIIIarrlc:d cohabitation. Over 30 per cent of couples in Quebc:c arc In civil unioll$. This is twoand-a:-half times the rate In other provinces and tmitorlcs (34.6 per cent in Quebc:c compared to 13.4 percent in therestofthecountty). ScreMiIan, V~&:Wells,suplllnotl: 149 at 7.

198. CEOA W, supra note 178, arts. 16(a). (b).

199. ACCCS5 to the default property (Cgime for marltal property is the mostslgnificant remaining diJrC(CDce following Nova Scotia (AtlDm9 GmuaJ) .... Walsh. [2002] 4 S.C.R. 325 [Walsh]. The constructive trust regime, to which unmarried cohabitants have: access on dissolution of their relationship, approximates the presumption of equal sharing in the default regime to which married couples have access. However, acquiring a constructive trust in a cohabltating spouse's assets is a less certaln outcome, and the regime provides

81

3.66 (2D09) 47 OSGOODE HALL LAW JOURNAL

riage would be a purely symbolic rip of the hat to Canada's commitment under theCEDAW.

Alr~y, arguments have been raised about whether even this bare commitment to civil monogamy can be constitutionally sustained.2OO As noted above, the right to liberty secured under section 7 of the Charter, implicating the fundamentallibeny to choose which partner one marries-and also how manymay be in competition with any pressing and substantial objective of clarifying the status of civil marriage or symbolically entrenching the CEDA W in the Civil Marriage Act and its bigamy provision.

In any event, the specific harms associated with sexual integrity that are now voiced in the concerns ahour a minimum age for, and consent to, valid marriages arc already captured in the prohibitions 011 sexual exploitation and sexual inter~ce, as well as by the post-1983 removal from the Criminal Code of marriage as a defence to sexual assault. All of these offences may indeed be easier to establish if they are not hidden behind the thick veil of legitimacy and privacy provided by the institution of marriage. Entrenching a definition of monogamy for the purposes of both ctirninal and family law may be merely symbolic, but its symbolic freight can occlude some of the most pernicious harms that 'the entrenchment of the CEDA W in civil and criminal definitions of marriage was intended to prevent.

Whether or not Parliament were to define civil marriage as monogamous in both the Civil Marriage Aa and the Criminal Code, with the abundance of means available at Parliament's disposal to meet its legitimate commitment under the CEDAW-and with regard to the justified concerns about women's rights that have transformed the landscape of the Canadian family over the last forty years-the moral perils inherent in the criminalization of polygamy need to be deeply weighed and re-considered.

more latitude for judicial departure from presumed equality of contribution. A:i Rollie Thompson notes in Amlt1l41ion til Wal.rh II. Bona (2003), 32 R.F.L. (5th) 87 at 92, -the law -in this area has become more incoherent, inconsistent and unpredictable. Vague tests of 'juristic reason' and 'direct link' and 'value- received/survived' leave much room for ~_ubjective and nereot:yped interpretations of roles and contributions." The gap between the de&.ult regime and ccnstructtve trusts is one that is felt by women in both monogamous and polygamous cohabitational relationships.

200. Sec Bailey It ill, JIIlra note 30 at 19ff.

DRUMMOND. POLYGAMY'S INSCRUTABLE MISCHIEF 367

IX. CONCLUSION

The polygamy charges and the fraught legal history emerging from Bountiful, British Columbia. have provided us with an opponunity to re-evaluate where we have stood as a society with respect to plural unions ever since the Criminal Code first prohibited polygamy in 1892. While this re-appraisal may be taking place on an informal level, with ordinary Canadians pondering whether and how their values might accommodate non-monogamous family arrangements. the formal law must also account for the substratum of values that has shifted over the last. century-and. most particularly. over the last forty years. The sociological shifrs of this substratum have been reflected in changes that have been made in both statutory and case law over this time. It is this latter, legal context that courts turn to in determining whether or not a standing legal provision is capable of both providing fair notice to citizens about culpable behaviour and limiting enforcement discretion, such that this discretion is prevented ftom veering towards standardless sweeps. I have argued in this article that the polygamy provision is no longer a constitutionally sustainable piece of legislation.

Decades of family law reform and refinements of the criminal law have rendered the polygamy provision's harm inscrutable. Religious and. other nODcivil marriages have long been reduced to civil nullities by the state. When Canada passed its first divorce act in 1968, it assumed universal jurisdiction over divorce, allowing those in religiously indissoluble marriages to re-marry civilly as long as their prior civil marriage was dissolved. Prior existing religious marriages were no longer regarded as lawful impediments to civil marriage, and neither were they considered fol,1J1S of marriage: or conjugal unions for the purposes of the polygamy provision.

Changes in marriage and divorce law were accompanied by a transformation in social attitudes towards unmarried cohabitation. A couple living together for a duration sufficient to raise four children (as in Tolhurst and Wright) were not considered to be living in a conjugal union for the purposes of the polygamy provision in 1937. Indeed, neither were their unions otherwise recognized for the benefit of family law. Formal marriage was considered to be the significant social and legal event of the time. S'txty years later, functional conjugality-the nexus of spouse-like activities in which a cohabiting couple engage-sets the threshold for almost as many of the resources of famUy law as marriage itself. Meanwhile, the content of the institution of marriage has become more fluid

368 (2009)47 OSGOODE HAll LAW JOURNAL

and diverse. Comm.ensw:atcly, the content of the pivotal concept in the polygamy provision-conjugality-has become fluid and open-ended to the point of having no lc;gal meaning at all.

Throughout these developments and, indeed, long before polygamy was prohibited in 1892, male sexual infidelity has not been regarded as a perilous foray over the edge of monogamy and into the territory of polygamy. The polygamy section's own case law tolerates the conjunction of monogamous marriage and adultery, even adultery of an extended duration and with the result of multiple children. More recently, swinging and other forms of polyamory have found their place alongside other forms of coupling, and these activities have been regarded in law as, minimally, not indecent.

Given the range of behaviours and arrangements that the law views as consistent with monogamy, it has become increasingly difficult to decipher the specific harm that the polygamy provision is intended to thwart. Enough formal and functional exceptions have been carved out of the section to cover JUSt about every form of human coupling. As a result, the section has been left hanging, and is vulnerable to the charge that it should now be considered void for vagueness and an unconstitutional violation of the right to life, liberty, and security of the person.

Beyond the unconstitutionality of the provision, and in light of over a century's worth of tolerances, the prosecution of particular plural unions appears to court both legal incoherence and social hypocrisy. Worse, the singling out of minority groups for practices that are functionally no different from what the majority population has tolerated. and accommodated over the last century leaves the polygamy provision poised to trigger concerns about xenophobia and racism. Such concerns have grounding in the discriminatory way that that provision was originally formulated and subsequendy invoked.

The social, legal, and constitutional deficiencies of the polygamy provision will be weighed against concerns about vulnerable &mUy members in plural arrangements. This article has argued that these latter considerations do not outweigh the perils of the ongoing criminalization of l'olygamy. Concerns about the vulnerabilities of women and children that have, to a large extent, driven the reforms of family law over the last four decades were lamentably absent from the polygamy provision's first sixty years in the Criminal Code. These concerns remain pressing for women in Canadian society at large, not just for women and children in unconventional family arrangements. Both the amplitude

DRUMMOND, POLYGAMY'S INSCRUTABLE MISCHIEF 369

and the paucity of legal and social resources for vulnerable f.unily members fall indiscriminatdyon women in both monogamous and polygamous unions.

Ultimately, the conjunction of the polygamy section's inscrutability with its tendency to allow for selective targeting of minority groups has rendered the section suspect and unworthy of the Canadian tradition of reasonable accommodation of difference. If Canadian law needs some adjustments to ensure that all women, including those in polygamous unions, have equal access to the concrete securities that make our options tangible and attainable-providing us with the most robust exercise of the agency that Canadian society is able to offer-then that should be done in a manner that does hot single out religious, social. and political minorities for a singular form of scrutiny. discipline. persecution, and paranoia.