Skip to content

Lawyer on polygamy case changes his tune

Law Library
|Written By Damian J. Penny
Lawyer on polygamy case changes his tune
A Cruel Arithmetic: Inside the Case Against Polygamy, by Craig Jones, Irwin Law, 2012, pp. 384.

When s. 293 of the Criminal Code of Canada was referred to the British Columbia Supreme Court, I wrote that I believed the law was clearly unconstitutional in its current form:

If this case was about legal recognition of polygamy — with massive implications for family law and even immigration policy — it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence. Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults. I would be very surprised if the B.C. Supreme Court — and, ultimately, the Supreme Court of Canada — does not find that the section is overly broad and therefore unconstitutional.

The Supreme Court of B.C., of course, did uphold the constitutionality of s. 293 (this is why you shouldn’t take my stock market or fantasy football predictions, either). But the debate isn’t over, and the anti-criminalization arguments summarized in my blog post will still be forcefully made by religious and pro-polyamory activists.

Craig Jones, who represented the British Columbia Department of Justice in the Polygamy Reference, could not disagree with these arguments more strongly. A longtime civil libertarian, Jones was confident the constitutionality of s. 293 would be upheld, but he initially did not personally take a strong position against the practice.

By the time the matter made it to court, however, he was convinced polygamy is an inherently harmful practice that should not be tolerated in a modern society. He explains his evolution, and the case against polygamy, in his fascinating book A Cruel Arithmetic: Inside the Case Against Polygamy.

In a polygamous society like Bountiful, B.C. — a mysterious, secretive colony populated by members of the Fundamentalist Church of Latter-Day Saints, the breakaway Mormon sect which practises “plural marriage” — this “cruel arithmetic” inevitably manifests itself in two ways. Every time a man takes an additional wife (polyandry, the taking of multiple husbands by a woman, is almost unknown) another man in the community is left with no one to marry. And as the adult females are married off, younger and younger wives are taken. The results: child trafficking, sexual exploitation of minors, and “lost boys,” who are marginalized and even expelled from their homes:

According to Jones, it is not enough for the state to take action against only “bad” polygamy involving young children or coercion and abuse:

Again and again, the discussion circled back to the fact that academic writers seemed to consider only harm arising in polygamous marriages, not polygamous societies [emphasis added]. The focus was entirely on how to accommodate polygamous unions while minimizing or addressing possible harms to co-wives and children. The commentators concluded that banning polygamy was unconstitutional because the law could be written to apply only to “bad” polygamy, or the state could simply scrutinize polygamous marriages looking for abuse and crimes. But the “cruel arithmetic” effect on the targeting of girls, like the increased criminality of men in the polygynous society, would be felt everywhere, and this was so even if every polygynous marriage was harmless, egalitarian, and restricted to fully consenting adults.

One of Jones’s expert witnesses, Dr. Joe Henrich, forcefully made the case that a “nontrivial” increase in polygamy would result in higher rates of crime and anti-social behaviour from the growing number of unmarried males (this has been the experience in China, where the “one-child” policy has led to an imbalance in the number of males and females).

But surely if polygamy were decriminalized, very few Canadians would take up the practice, right? Jones isn’t willing to take that risk. He devotes a lengthy chapter to the findings of historians and evolutionary psychologists, who note monogamous societies are a relatively new development. And, of course, there are still many nations where polygamy is legal and/or widespread, and it’s not hard to believe immigrants from these societies would be attracted to Canada — multiple wives in tow.

A Cruel Arithmetic makes a very strong case against polygamy, but does it make a strong case for criminalizing the practice? I find Jones’ arguments compelling (as did the British Columbia Supreme Court, obviously) but I still believe consenting adults have an inalienable right to enter into whatever arrangements they want.

Indeed, adults can enter into polyamorous relationships, provided they don’t go through anything like a marriage ceremony. Once the relationship becomes a “marriage,” though, it becomes a crime. As the distinction between even monogamous marriage and common-law relationships becomes less clear, I believe this becomes increasingly hard to justify. Even Jones has a difficult time pulling it off, in my opinion:

There may be harms that attached to some “polyamorous” relationships that weren’t marriages. But in my view, there was something about marriage, about the invocation of some external authority with (even notional) powers of enforcement, that permitted polygamy “take” a spread. . . . Who knows, if polyamory really does take off, and if it caused the same problems as polygamy, perhaps the law would have to be changed to accommodate that new reality. But line drawing, as we would urge the Court, is Parliament’s business, and when dealing with a spectrum of risks and harms the line has to be drawn somewhere.

Jones puts forward evidence that polygamy leads to societal harms that justify infringement upon some individual rights. But we have to be careful about where that line of thinking can lead us (would an abortion ban be justifiable if social science research showed harm arising from a declining birth rate?).

There’s also the fact Canada has tolerated the practice of polygamy in Bountiful for decades. There might be a Criminal Code section that makes polygamy a criminal offence, but it hasn’t stopped a polygamous community of 1,000 people from developing in the B.C. interior. We’ve known what’s been going on there for years, but nothing was done about it. And the longer it takes, the harder it becomes to suddenly start prosecuting it.

Moreover, Canadians know the anti-polygamy law is almost never enforced, but that certainly hasn’t led to many more “plural marriages.” If anything, the existence of Bountiful — a closed, cultish community that feels like a throwback to the 19th century — has probably made polygamy less attractive to mainstream Canadians. Who wants to live like those guys?

The case against officially recognizing polygamous unions, however, is much more strong (if anything, A Cruel Arithmetic is useful for rebutting the argument made by anti-gay-marriage activists, that recognizing same-sex marriage will lead to a slippery slope toward officially sanctioning polygamy). We can respectfully disagree as to whether it should be a crime, but we can agree that polygamy is a very troubling practice.

More importantly, A Cruel Arithmetic describes this major Canadian constitutional argument in more detail than I’ve seen in any other book. The duelling lawyers and their personalities, the clashes within the civil service, the preparation and cross-examination of witnesses — it’s all here. And it is absolutely riveting, especially when Jones describes the dismantling of dubious “expert” witnesses trying to make the case that polygamy is not so harmful. I’d go so far as to say every law student should read it, and many practising lawyers could learn a lot from it, too. I certainly did.

  • What is polygamy really?

    Morgan Berg
    Given that this is a lawyer mag, I ask the readers to question what the canadian government can define "polygamy" as being. The canadian government can define "marriage" with its rights and responsibilities.

    For instance if I commit adultery and have a child with another man or woman am I committing polygamy or I am innocent only because the man or woman does not live with me? If I am gay or lesbian would have sexual intercourse with another same-sex partner in my home who lives with me be polygamy?

    Isn't adultery barbaric too, in fact polygamy seems more legitimate and less deceitful than cheating on your spouse with another person and having children with them. I don't think harper would propose a bill stripping canadians of citizenship if they commit adultery, so its hypocrisy and deceitful and just another way to score political points.
  • Problems with defining polygamy

    John Calvin Jones
    Dear Morgan Berg,

    Thank you for your comment. I am considering writing a law review article on s. 293. There are so many problems with the language, its definitions (or lack thereof), and plain meaning.

    To look closely, the statute says that marriages can exist even when not recognized in law. And we know that s. 293(2) removes the burden from the Crown to show marriage or sexual activity or ANY effort or idea to consent either to marry or to have sex!

    I would love to learn your thoughts.

    John Calvin Jones, PhD, JD
  • Hypocrisy

    Morgan Berg
    The Harper government is trying to impose a sort of "shariah law", like the taliban, how else could the law be enforced if the government doesn't police morality and check to see if you live with another woman or man? Yeah its different if an entire community has a cult of that nature, but I could imagine immigrants being policed just like in the muslim countries where unrelated women or men are not allowed with eachother.
  • Hypocrisy

    Morgan Berg
    Such hypocrisy, polygamy is in many cases consensual, branding a consensual activity with other laws is like wolfs and sheep mixed together.
  • Polygamy: the cost

    Tricia Erconner
    In light of the recent arrests of so many Somoli refugees in Norway for welfare fraud, I am asking about how Canada deals with Somalis who have up to 4 wives. I personally know of one family wit 4 sons, the mother claims to be a single mother. But the father lives there with her some time and with some of this other wives at other times. She also lives in public housing. I am not against her, but the idea that Canada has extended itself to many who seem to disregard the law against polygamy. What difference does it make whether the husband is there full time or not? If he has many wives as required by his islamic traditions, why should Canada have to pay for such a tradition, when it goes against our laws?