SUSAN DRUMMOND
Teaches family law at Osgoode Hall Law School

Canada signed the international Women’s Convention in 1980, and thereby committed itself to “take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.” The convention recommends that states acknowledge that “polygamous marriage contravenes a woman’s right to equality with men.” Is there a way to square the decriminalization of polygamy with our international commitment in a way that does not prey on our fear of those who are different from us?

The Criminal Code’s polygamy section, from its inception through its bizarre history of virtual non-use, has always been shrouded in an aura of xenophobia and racism. The provision itself was drafted in 1892 under pressure from the U.S. government, busy enacting its own criminal law targeting fundamentalist Mormons. We had no shame in similarly tailoring our polygamy law to single out this religious minority – a piece of blatant religious discrimination rectified only in 1954.As American scholar Martha Ertman notes, the leading American case on polygamy from 1879 held that polygamy was “odious among the northern and western nations of Europe” and “almost exclusively a feature of the life of Asiatic and of African people.”

One of the rare convictions under the polygamy section was against an aboriginal man who was living in a customary marriage with two women. The judge noted in the 1899 case: “It is plain that among the savage tribes on this continent marriage is merely a natural contract and that neither law, custom nor religion has affixed to it any conditions or limitations or forms other than what nature has itself prescribed.” Under Canadian common law, for aboriginal people alone, consent constitutes marriage and living together constitutes consent – an understanding that was sufficient to tear Bear’s Shin Bone from his family and community for five years in prison.

The conjunction of Canada’s lonely conviction of an aboriginal man under the polygamy provision and this view of fundamentalist Mormons as race traitors should signal to us that the “family values” underpinning the section are poised to operate as a form of discipline for socially and politically marginalized people.

There are other ways of protecting women and children from abusive marriages (polygamous or monogamous) that don’t lead us into these perilous waters. Many of these mechanisms are already at our disposal.

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Tags: aboriginal, Bear's Shin Bone, Canada, Canadian common law, Criminal Code, Marriage, Mormons, polygamous marriage, polygamy, racism, xenophobia

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