Is polgyamy a crime in Canada?

Guest Blogger "Amber"

Is polygamy a crime in Canada? Does Criminal Code Section 293, making polygamy a crime in Canada, infringe the Canadian Charter protection of freedom of religion?
Two leaders of a Fundamentalist Church of Jesus Christ of Latter-day Saints based in Bountiful, a community in the southeastern interior of British Columbia, were arrested earlier this year and charged with one count each under Section 293 of the Criminal Code. The Criminal Code bans polygamy which is defined as entering into a conjugal relationship with more than one individual at a time.
On September 23, the B.C. Supreme Court quashed the appointment of a special prosecutor and his decision to pursue the polygamy charges against Winston Blackmore and James Oler. To avoid a lengthy and costly appeal process, the BC Crown prosecutors will bring a Constitutional Reference on two questions:
Is Criminal Code section 293 consistent with section 2(a) of the Charter of Rights and Freedoms (freedom of religion and conscience)? The second question will seek clarity on the provisions of Criminal Code section 293 on the crime of polygamy.
This means that instead of proceeding with criminal charges against individuals, the Crown prosecutor will seek the opinion of the Supreme Court of British Columbia through a “Reference” (much like a referendum but with arguments presented by both sides of the issue) on whether polygamy remains a crime in Canada in light of the Charter provisions.
By referring the matter to the BC Supreme Court, evidence and witnesses may be heard concerning values of the current Canadian society.  If the Reference were to go before the BC Court of Appeal instead witnesses and evidence would not be presented as the Court of Appeal is restricted to hearing only questions about the law itself.  It is most likely that the federal government will likely be granted Intervenor status to participate in the Reference.
While these questions are waiting to be heard in the BC Supreme Court, let’s have a look at what are the requirements to enter a valid marriage in British Columbia.
There are six basic requirements for a valid marriage in BC as governed by the BC Marriage Act:
1.   Age
At common law girls needed only be 12 years of age while boys had to have turned 14. Anyone may now marry in BC at the age of 19. Either sex may be married between the ages of 16 to 19 with parental consent. Under the age of 16 it is necessary to obtain permission of the BC Supreme Court.

2.   Mental capacity
A person must have the mental capacity to understand the nature and result of the marriage ceremony as well as the responsibilities that are created by being married.

3.   Consent
Both parties must genuinely consent (voluntarily agree) to the marriage.
The marriage may not be valid if there is a mistake as to the identity of the other person (you mistakenly married the twin). The marriage is not valid if it was agreed to out of fear for his or her life, freedom, or well-being. Well-being arguably could include fear of being ostracized by family or community group.

4.   Degree of relationship
a.   Consanguinity includes a half or whole blood relationship. Thus one cannot marry a full sibling (the same mother and father) or a half sibling (the same mother or father).  A woman cannot marry her grandfather, uncle, father, son, brother, grandson or nephew. A man cannot marry his grandmother, aunt, mother, daughter, sister, granddaughter or niece.
b.   Degrees of affinity (being too closely related by marriage) are no longer prohibited. You are free to marry a step relative or the relatives of your former spouse.

5.   Sexual capacity means the ability to consummate the marriage. If a party is unable to engage in normal sexual intercourse, the marriage may be annulled (cancelled or dissolved).

6.   Single status:
a.   Bigamy makes a second marriage illegal and void.
b.   If previously married, the party must produce a Certificate of Divorce.
c.   A divorce is not final until 31 days after the Decree Nisi. A person is free to re marry the thirty-first day following the decree nisi of divorce.

Same sex marriages are now valid in British Columbia.
The federal Modernization of Benefits and Obligations Act [SC 2000] c.12, extended benefits and obligations under various federal legislation to all couples in conjugal relationships for at least one year. This provision came into force September 1, 2003.

Written by:
Amber
Non-practising lawyer

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