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Polygamy in Canada
1-23-2019
On January 13th, 2019, CBC’s Fifth Estate aired an investigative news story about “Polygamy in Canada: An Open Secret.” To many it was an eye opener, especially within the Muslim community. For few it was nothing new. If you have not watched the report, we highly recommend you watch it. It is insightful, balanced and informative.
Whether it was an eye opener, or an old recycled diatribe. The fact remains, this is an issue, which our community faces, and it needs to be dealt with.
Some background to legislation on polygamy in Canada. In 1890, when the Mormon Church, aka, Church of Jesus Christ of Latter Day Saints abandoned the practice of polygamy. Canadian lawmakers fearing the Mormon Church followers moving to Canada passed legislation restricting polygamy in 1892.
In July 2017, when a BC Court found Winston Blackmore, and James Oler, a fellow adherent of a fundamentalist splinter sect of the Mormon church guilty of “Plural Marriages.” “It was the first conviction for more than a century under a law from 1892 that aimed to stop American polygamists (many of them Mormons irked by their church’s renunciation of polygamy in 1890) from practicing in Canada. Authorities had been wary of laying such charges for fear of a constitutional challenge. That obstacle was removed in 2011 when the Supreme Court in British Columbia found freedom of religion could not be used to justify actions that harmed others.” Reported The Economist.
The Economist further reported that, “The debate about the conflicting principles of human rights and religious freedom is shifting to Islamic immigrants. That is partly because of the trial of Mohammad Shafia, an Afghan immigrant who in 2009, with the help of his second wife and son, murdered three of their other children, as well as his first wife; and partly because of the passage in 2015 of the Zero Tolerance for Barbaric Cultural Practices Act by the previous Conservative government. The law, which reiterated that polygamy is a crime, as are “barbaric practices” such as genital mutilation and the forced marriage of children, was criticized for having an Islamophobic tone. Yet it struck a chord with those Canadians who feel Muslims do not share their values.
Polygamy is legal for Muslims in three of the top five source countries for immigrants to Canada in 2015 (the Philippines, Iran and Pakistan) and quite common in another (India). Canada has advised UNHCR, the UN’s agency for refugees, not to refer any refugees in polygamous marriages to Canada for resettlement.”
The issue highlighted in the report by Fifth Estate shone a light on a very different issue. That is, Canadian citizens, living in Canada, venturing into the world of polygamous marriages and/or relationships.
According to information obtained from Justice Canada website, “The term “polygamy” can refer to the simultaneous union of either a husband or wife to multiple spouses. As a general term, polygamy therefore includes the practices of bigamy, polyandry, and polygyny.
The term “bigamy” is typically used in domestic legislation that prohibits marriage to more than one person simultaneously. While this report will not examine Canada's domestic legal prohibition of bigamy or polygamy in depth, domestic legislation is useful for clarifying terminology. According to the Criminal Code, bigamy occurs when a person who is already married marries again, marries more than one person simultaneously, or marries someone that he or she already knows to be married. Significantly, the Criminal Code does not provide an express definition of polygamy.
The principal difference between bigamy and polygamy, however, as described in the Criminal Code, is the fact that bigamy requires a “form of marriage” as defined in section 214, where polygamy does not. In its 1985 report on bigamy, the Law Reform Commission of Canada also provided its own definition of polygamy:
… polygamy consists in the maintaining of conjugal relations by more than two persons. When the result of such relations is to form a single matrimonial or family entity with the spouses, this is regarded as polygamous marriage.”
The CBC report highlighted the fact that, “The majority of Muslim jurists say a Muslim man is permitted to take up to four wives, but only if he can treat them all fairly and with justice.”
“In a recent sermon at his centre, Imam Hamid Slimi told his congregation that polygamy "was permitted for a certain time and within a certain context in the past, hundreds of years ago, but here in Canada, it's not allowed and 95 or 99 per cent of women don't agree with this and I am talking about Muslim women."
“The Canadian Council of Imams, which represents the majority of imams in Canada, has declared that polygamous marriages, permitted according to the Qur'an, are nevertheless not valid because they are a violation of Canadian law.”
This is an issue which our community needs to confront collectively. The Canadian courts have already dealt with the constitutional challenge of infringement of Charter Rights, and have dismissed the arguments, resulting in both Mr. Blackmore and Oler were sentenced to six and three months house arrests.
Based on the established precedent, it can be said that any argument or constitutional challenge related to infringement of Charter Rights would be a tough sell. Thus, it is just a matter of time before a fellow Muslim Canadian is charged under the law and could be sentenced up to five years of imprisonment.
In our view, educating the community members on their legal responsibility under the Canadian law should be the first step the mosques and religious organizations must undertake, as many are not aware of their legal obligations under the law, and subsequent consequences of breaking the law. Not to mention the psychological impact it has on family members, especially the children.
We strongly believe that this and many other issues which confounds our community need to be discussed in more open manner and more often. An in-depth study should be conducted to see how prevalent this issue really is. Is the media trying to make a mountain out of molehill or is it as widespread as it projects it.
Time has come we discuss all issues which sheds a negative light on our faith more openly and try finding a solution for it in best manner and in accordance with the Canadian laws.
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