The recent police raid on a Texan compound of the Fundamentalist Latter Day Saints (FLDS) has renewed discussions in Canada about the status of polygamy.

Currently, under section 293 of Canada’s criminal code, polygamy is expressly outlawed. A 2005 study for the Canadian federal Justice Department, Polygamy in Canada: Legal and Social Implications for Women and Children, recommended abolishing laws criminalizing polygamy. Arguing from the basis that polygamy laws serve no purpose and are rarely prosecuted, Bailey et. al. (2005) recommend that the government repeal section 293 of the Criminal Code that outlaws polygamy. While they acknowledge that polygamous relationships are overwhelmingly a bastion of abuse towards women and towards children, Bailey et. al. contend that “if there are problems such as child abuse, or spousal abuse, there are other criminal provisions or other laws dealing with those problems that certainly should be enforced.”

By now we’re all aware of Canada’s very own FLDS community in Bountiful, BC, a place BC Authorities would sooner forget. This week, Vancouver lawyer Leonard Doust issued a report suggesting that the best way to deal with polygamy in Bountiful, BC was to refer section 293 of the Criminal Code to the courts to test its constitutionality, rather than prosecute individuals first. Arguably, this test of constitutionality would be in the context of freedom of religion. However, our courts must also be aware of our obligations under international law to prohibit polygamy. According to the Committee on the Elimination of Discrimination Against Women (1994):

Polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women… (qtd. in ACLRC, 2004: 9).

As states party to the Convention on the Elimination of all forms of Discrimination Against Women, Canada has an international obligation to consider the impacts of polygamy on women when determining the legality of marriages.

And it seems there is increasing recognition across Canada that the harms of polygamy outweigh any arguments of religious freedom:

Both Mr. Peck and Mr. Oppal say they are confident that Section 293 could survive a religious freedom challenge under the Charter. “There is a substantial body of scholarship,” Mr. Peck observes, “supporting the position that polygamy is harmful,” and that limits on polygamous practice could thus be found “reasonable” by the Supreme Court.

But if that’s how they really feel, why won’t the BC Attorney-General go forward with charges or at least an investigation into Bountiful? Maybe they’re adopting a “wait and see” approach with what’s going down in Eldorado. Hopefully, they will take some cues and we’ll see action on this gross human rights blemish shadowing our country at the moment.