Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 (23 November 2011) Summary
This case was referred to the Chief Justice of the Supreme Court of British Columbia, Canada to determine the constitutionality of section 293 of the Criminal Code of Canada (establishing polygamy as a criminal offence), in light of the Canadian Charter of Rights and Freedoms.
The central question to be resolved by the this case was whether, on the balance on probabilities, the criminal offence of polygamy was a reasonable limitation (per section 1 of the Charter) on the rights protected under sections 2(3) and 7 under the Charter, as can be demonstrably justified in a free and democratic society.
The parties to the reference were the Attorney General of British Columbia, the Attorney General of Canada and, as the Attorneys General submitted that section 293 was constitutionally sound, a court appointed Amicus Curiae. In addition to the parties, eleven interested organisations participated in the proceedings, representing different interests in the core issue of the reference; whether the criminal offence of polygamy is inconsistent with the Charter and therefore, constitutionally unsound.
The Reference included evidence from numerous experts and witnesses regarding whether polygamy caused harm to individuals and society. In particular, the Reference explored the impact of polygamy on women and children.
The Reference is a three-hundred and fifty page treatise, which explores the sociological history of polygamy and the development of harm-prevention based laws against polygamy. Bauman CJ's decision steps through the history of prohibitions on polygamy in Western societies, extrapolating the reasons and arguments for the prohibitions over time in order to weigh the objective of the limitation on the Charter imposed by s 293.
Polygamy as harm
The majority of the judgement pertains to the evidence before the Court relating to whether polygamy caused harm to society. Examining both expert factual and opinion evidence and a literature review, the Court accepted the evidence before it, finding that polygamy has a number of predictable effects on societies, and are not limited to particular cultures and geographic locations:
- women in polygynous (male with multiple wives) relationships are at an elevated risk of physical and psychological harm; face higher rates of domestic violence and abuse; have higher rates of depressive disorders and other mental health issues; have more children, are more likely to die in childbirth and have shorter life expectancies; lack reproductive autonomy; fare worse economically.
- children in polygynous families face higher infant mortality, regardless of economic status; suffer more emotional, behavioural and physical problems, including lower educational achievement; are at enhanced risk of psychological and physical abuse and neglect;
- polygamy creates a pool of unmarried men with the attendant increase in crime and anti-social behaviour;
- increased competition for women creates pressure to recruit increasingly younger brides into marriage;
- polygamy institutionalises harmful gender stereotypes and commodifies women;
- patriarchal hierarchy and authoritarian control are common features of polygynous communities.
The Court concluded that the practice of polygamy constitutes a reasonable apprehension of harm to society and particular individuals.
The Court held that Canada was subject to numerous international treaty obligations to take all available measures to eliminate polygamy, namely, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination Against Women. While not expressly prohibited, the Court found that the prohibition on polygamy under these treaties arose through an interpretation of the treaties' more general provisions.
Section 1 - Reasonable limitations on rights
Section 1 of the Charter provides that substantive rights contained in the Charter may be subject to reasonable limitation, prescribed by law, as can be demonstrably justified in a free and democratic society. The Court utilised the test set out in previous section 1 cases, R v Oakes  1 SCR 103 and Alberta v Hutterian Brethren of Wilson Colony 2009 SCC 37, as the ‘analytical framework’ for assessing the reasonable limitation question:
- Is the purpose for which the limit is imposed pressing and substantial?
- Are the means by which that goal is furthered proportionate?
- Is the limit rationally connected to the purpose? (Does the limit minimally impair the Charter right? Is the law proportionate in its effect?)
This framework was applied by the Court in turn to each the relevant Charter rights, as set out below.
The first two elements of the above framework were considered in light of both section 2(a) and section 7.
Pressing and substantial purpose
The Court found that the objective of section 293 to prevent harm to women, children and society associated with polygamy was clearly a pressing and substantial objective. In addition, the Court found that the preservation of monogamous marriage given the Court's analysis regarding the reasons for the ascendance of monogamous marriage in Western society, was also a pressing and substantial objective.
Means of limitation - rational connection to the purpose
The Court considered the previous Supreme Court reference, Reference re sections. 193 and 195.1(1)(c) of the Criminal Code (Man.) 1 SCR 1123 (regarding the criminalisation of prostitution). In that reference, Lamer CJ found that regulation or prohibition of a cause is a suitable method of prohibiting its effects, and consequentially, exhibits a rational connection between the means and objective of the limitation. The means of limitation need only be reasonably supposed to further the objective, and do not necessarily require that it be demonstrated that it will actually do so. The evidence tended before the Court was sufficient to satisfy the ‘reasonable supposition’, and reiterated previous decisions that the “efficacy of a law, or lack thereof, is not relevant to Parliament's ability to enact it” (Reference re Firearms Act, [at 57]), and that “[w]hile somewhat different considerations come into play under a Charter analysis, it remains important that some deference be accorded to Parliament in assessing the utility of its chosen responses to perceived social ills”. (R v Malmo-Levine  3 SCR 571 [at 177-8])
Section 2(a) - Freedom of religion
Means of limitation - minimal impairment of the Charter right
Bauman CJ held that section 293 minimally impaired religious freedom, and prohibited polygamy in so far as was required to prevent the reasonably apprehended harms that it may cause. Furthermore, the Court held that Parliament, rather than the Court itself, was better positioned to determine the means of limitation so that there was minimal impairment on freedom of religion.
Means of limitation - proportionate in effect
The Court found that section 293 was proportional in its effects; finding that “the salutary effects of the prohibition far outweigh the deleterious [and] seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy”. [at 1350] Furthermore, the Court concluded that the prohibition is consistent with Canada's international human rights obligations, adding “very significant weight to the salutary effects side of the balance”. [at 1351]
Conclusion - is section 293 a permissible limitation of section 2(3) per section 1 of the Charter?
To the extent that section 293 breached the right to freedom of religion guaranteed by section 2(a) of the Charter, the Court found that section 293 was a demonstrably justified limitation in a free and democratic society.
Section 7 - Right to life, liberty and security of the person
Means of limitation - minimal impairment of the Charter right
The rights contained in section 7, life, liberty and security of the person, are “not easily overidden by competing social interests”. [at 1353, citing Charkaoui v Canada (Citizenship and Immigration) 2007 SCC 9].
It was at this stage of the test that Bauman CJ found that section 293 failed to justify its limitation on the rights protected by section 7 of the Charter. The Court held that by criminalsiing every individual in a prohibited union, section 293 invariably applies to minors party to polygamous marriages, and is a “serious impairment of young persons' liberty”. [at 1356] Accordingly, Bauman CJ found “that to the extent s 293 is contrary to the principles of fundamental justice guaranteed by section 7 of the Charter, by [criminalising] young persons between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time, the Attorneys General have not met the burden of demonstrating that this infringement is justified in a free and democratic society”. [at 1357].
Means of limitation - proportionate in effect
As section 293 failed the minimal impairment element of the reasonable limitation test, its proportionality was not discussed specifically.
Conclusion - is section 293 a permissible limitation of s 7 per s 1 of the Charter?
The Court held that section 293 is a permissible limitation to the right to life, liberty and security of the person guaranteed by the Charter, except in so far as it includes within its terms children between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time. Whilst granting a constitutional remedy was not within the terms of the Reference, Bauman CJ indicated that if a remedy were to be granted, section 293 would be deemed substantially constitutional, and an exclusion would be read into the law to extract the peripheral problem. Alternatively, the phrase ‘every one’ in section 293 would be read down to exclude children from its application.
Relevance to the Victorian Charter
Bigamy (section 64, Crimes Act 1958) is a crime under Victorian law, and is defined as undertaking the form or ceremony of marriage with more than one person (similar wording to that in section 293).
Sections 14 and 21 of the Victorian Charter (freedom of thought, conscience, religion and belief, and right to liberty and security of person) most closely reflect the rights examined in the Reference.
Like section 1 of the Canadian Charter, the Victorian Charter also provides a reasonable limitation provision under section 7, with nearly identical wording to that of the Canadian provision. Section 7(2) provides that a “human right may be subject under law only to such reasonable limits as may be demonstrably justified in a free and democratic society”. Unlike the Canadian provision, the Victorian section legislates a non-exhaustive test for assessing limitations. This test however, nearly identically replicates the test used by Bauman CJ in the Reference, derived from Canadian common law.
As a result, the process and conclusions reached by Bauman CJ in this Reference may provide a persuasive framework of how to apply the test set out in section 7(2)(a)-(e).
The case can be found online at: http://canlii.ca/en/bc/bcsc/doc/2011/2011bcsc1588/2011bcsc1588.html
Alexandra Phelan is a Solicitor with the Human Rights Law Group at Mallesons Stephen Jaques