Children's rights and polygamy by Mike Elliot

          There is currently before the British Columbia Supreme Court a reference dealing with the constitutionality of the criminalization of polygamy. The Canadian Criminal Code has prohibited the practice of polygamy for some time, but this provision, in large part because of the concern that it would be considered unconstitutional as a violation of, at least, the Charter of Rights and Freedoms’ guarantee of freedom of religion, has not been enforced. As a result, polygamy has been practised on a relatively open basis in British Columbia, in particular in a town called Bountiful. In the hope of being able to enforce the provision, the provincial government has brought a reference before the Supreme Court to determine whether it is constitutional.

Canadian courts have taken a fairly liberal interpretation of what is necessary to engage the constitutional provision, s. 2(a), protecting freedom of religion, and it is therefore highly likely that the government, in order to save the criminal prohibition from being struck down, will have to justify it as a reasonable limit “prescribed by law as can be demonstrably justified in a free and democratic society.” This is possible pursuant to s. 1 of the Charter, which empowers the government to impose such limits, provided they are able to justify them before the courts.

The government is relying primarily on the harm that polygamy has the potential to cause to society. Among the harms on which it and interveners, particularly the Canadian Coalition for the Rights of Children, are focusing are those inflicted upon children. These include:

·        sexual exploitation of young girls;

·        exploitative use of boys’ and girls’ labour;

·        failure to fulfill girls’ and boys’ rights to education and equality rights;

·        inadequate child protection mechanisms and unreasonable risk of child abuse;

·        denial of children’s rights to freedoms of religion, thought and self-expression, and their right to be have their views considered;

·        and the removal of children from mothers to punish the mothers without due consideration of the best interests of the children.

The ability to practise one’s religion free from government intervention, as a constitutionally protected freedom, is not to be lightly infringed. Criminal prohibition is a particularly intrusive form of infringement. Furthermore, children’s rights, such as the right to education, which is provided for by Article 28 of the Convention on the Rights of the Child, are not constitutionally protected.

However, despite the factors in favour of striking down the relevant provisions of the Criminal Code as unconstitutional, there is also a strong basis for upholding it, as I hope the court will do. Canadian jurisprudence has interpreted s. 1 of the Charter to require courts to engage in a balancing analysis, whereby they weigh the effects of the infringement of the right or freedom at issue with the benefits achieved by the impugned law. Where the benefits outweigh the costs, i.e. the infringement, the law will be upheld.

In this case, there is considerable evidence that the practice of polygamy is seriously detrimental to children’s welfare. Children’s rights are receiving increased attention in international law, as well as through various Canadian legal instruments. Given that the criminal prohibition of the practice will presumably reduce the extent to which polygamy is practised, at least once upheld as constitutional and therefore enforced, the benefits of the Criminal Code provision are substantial. They should also be sufficient to outweigh the infringement of a practice that is inherently discriminatory.