Kathy Vandergrift

“I have concluded that this case is essentially about harm,” wrote Chief Justice Robert Bauman in the B.C. Supreme Court ruling that upheld the prohibition of polygamy in section 293 of the criminal code. After a year of gathering world-wide evidence about polygamy, hearing from experts, and listening to first-hand testimony, the court ruled that prohibiting polygamy does infringe on the religious freedom rights of those who practice it, but that infringement is justified by the state’s duty to protect the rights of children and women. “Polygamy is not to be protected by religious freedom as the practice tends to deprive women and children of their fundamental rights,” Judge Bauman wrote. The ruling establishes an important precedent for resolving conflicting rights claims, but it also raises new questions in the field of family law.
This was not the expected outcome. The Amicus, a friend of the court appointed to defend polygamy, presented strong arguments for ending the criminalization of polygamy on the basis of freedom of religion and freedom of choice in intimate relationships. The Canadian Coalition for the Rights of Children, which I chair, intervened to ensure the court considered evidence about the impacts for children as well as the definition of marriage.
Women told the court about being forced to leave school against their wishes at grade 6 or 7 to become third or fourth wives of much older religious leaders, having multiple children in their teens and enduring abuse without a chance to escape for fear of what would happen to their children. In health classes, supported by tax dollars, religious instructors had told these women that their eternal salvation depended on their compliance with these practices. Young men told the court how they were punished, assigned dangerous work at early ages and forced out of the community if they showed any challenge to the religious leaders. The most compelling story came together at the end of the hearing. Putting together information from various sources, evidence was presented to show that young Canadian girls, including two twelve-year-olds, were taken across the U.S. border, turned over to religious leaders in Colorado and then transported to Texas where they were given to Warren Jeffs, who was later convicted and jailed for sexual exploitation of minors. This is child-trafficking. At one stage the B.C. government was informed about the presence of Canadian girls among the children at the Texas ranch of Warren Jeffs, but nothing was done about it initially. Inadequate record-keeping on children in closed, polygamous communities and lack of political will hamper child protection. The RCMP announced a new investigation at the close of the hearing, but to date no charges have been filed.
There were some women who testified that they made free choices and enjoyed the benefits of polygamous marriages. By the end of the hearing, however, the evidence about harm to women and children was well-established, including forced early marriage, sexual exploitation of adolescent girls, child labour, failure to educate adolescents enough to live independently and trafficking children across the border. Even the Amicus acknowledged in his closing statement that the current practice of polygamous communities in B.C. included unacceptable violations of the rights of children and women.
An appeal to the Supreme Court of Canada was expected, but the deadline for appeal has now passed without notice. So the ruling stands – at least for now and at least in B.C.

An important precedent
The ruling sets an important precedent in Canadian law, reinforcing the duty of the state to take positive measures to prevent harm, especially for young people. When community or religious practices such as those practiced within polygamous communities fail to protect the fundamental rights of children, the state has a duty to act. This may include prohibiting such harmful practices if necessary.
The use of harm as a central principle for adjudicating competing rights claims creates challenges of definition and proof. What kind and level of risk of harm justifies state action? What kind of state action is warranted? Future cases will undoubtedly come back to these questions.
Harm to the institution of monogamous marriage, the other harm cited in the ruling, raises even more questions. The ruling leaves open a door for plural, intimate relationships that are not sanctioned by a state or religious ceremony. This provision was included in response to representation by persons in polyamorous relationships between two men and one woman or two women and one man that are formed by mutual free choice and are not formalized through marriage. Criminal prosecution of such relationships is hard to justify by appeal to the harm principle. Although the ruling upholds the value of monogamous marriage as a social institution, it does not provide clarity for legal distinctions between the different kinds of intimate relationships from non-formal to common law to marriage. That went beyond his mandate, said Judge Bauman. The focus on preventing harm may foster a more helpful discourse about dependencies and interdependencies in various relationships than about the sexual aspects of such relationships, as a sound basis for public policy and laws.
In the meantime, it is time for the RCMP and the B.C. government to get serious about protecting the rights of children affected by polygamous communities in B.C. Positive measures will include educational reform and outreach services for young people, as well as prosecuting community leaders responsible for trafficking young girls across the border for sexual exploitation by religious leaders in the U.S. This case demonstrates a systemic failure to protect the rights of children that should be of concern to every resident of B.C. and Canada. It is a stark case, but it is not an isolated case. Protecting the rights of all children deserves more attention across Canada.

Kathy Vandergrift, a public policy analyst, focused her Master’s Thesis in Public Ethics on a comparison of different ethical foundations for children’s rights. She lives in Ottawa.