[708]     Witness No. 6 is a man in his 40s who left the Bountiful community in the late 1980s. He offers this evidence about his experience (at paras. 6 - 13):

I was born into a family with a father and many mothers in Bountiful. I grew up in a large home with 35 brothers and sisters, of whom 9 were my full biological siblings.

The household was organized with everyone having a place and a role in the family. These roles were not only identified with the adults but the children had important positions within the household.

I attended the Bountiful school. In 1988, I decided to leave the community and strike out on my own. There were many reasons that I left the community but one of the main reasons was that I sought a less rigid lifestyle. I do not like to follow others. I prefer to make my own decisions and I did not want to follow the strict rules of the church.

After leaving the Bountiful community I have kept in regular contact with many of my siblings still living in Bountiful. I also maintain a close relationship with my mother and I see her fairly regularly.

I do respect the privacy of my family and I know that there are some of my brothers and sisters who do not agree with my lifestyle and choices. I respect their views and I do not impose myself on any of them who may be uncomfortable in my presence.

Since leaving the community of Bountiful, my views about polygamy have not changed. I was taught that the marriage covenant was sacred and everlasting. I still believe that to be true.

The FLDS is not my choice but I believe that religion is a personal choice. I believe that the only people who have the right to chose what goes on in Bountiful are the individuals who live there.

I chose to leave the community on my own volition and to lead my own life. I have never seen or heard of boys being driven from the Bountiful community. In my observation boys, myself included, leave the community because they do not wish to abide by the strict rules of behaviour imposed by the church on all its members.

[709]     I will now concentrate on several aspects of the evidence led with respect to harm in connection with the community: teen pregnancy, the movement of young girls between the United States (largely Hildale/Colorado City) and Bountiful, and educational outcomes.

• Young Mothers

[710]     Among the most serious harms arguably associated with polygamy are the early sexualization of girls, early and frequent pregnancies, and marriage to older men. I have reviewed some of the expert evidence on these issues above. Does the evidence from Bountiful tend to confirm this to be the case?

[711]     In early 2005, the British Columbia Vital Statistics Agency [BCVSA] conducted a review of teen pregnancy in Creston, the local health area incorporating Bountiful. As related in the affidavit of Dr. Perry Kendall, the Provincial Health Officer for British Columbia, that review indicated a higher than expected number of births to mothers between the ages of 14 and 18. The BCVSA then attempted to isolate the percentage of teenage births from Bountiful by identifying five family names closely associated with the community and searching for birth records featuring those names.

[712]     What that analysis revealed was that while Bountiful likely accounted for 8 - 24% of the Creston area population, the five identified Bountiful families alone accounted for 38% of the area’s teen pregnancies. It also revealed a significant age gap between the mother and father in these pregnancies, with 28% of the declared fathers being more than 10 years senior and roughly half being five years senior.

[713]     In Dr. Kendall’s opinion, more information was necessary before precise conclusions could be drawn from these results. In particular, he would have liked information regarding the number of girls aged 14 - 18 in Bountiful, as an over-representation of teenage girls in the community could account for, or at least offset, the higher number of pregnancies. In the end, he was only able to conclude that the statistics regarding teen pregnancies showed that the rate in Creston was higher than the provincial average, likely as a result of a higher rate in Bountiful.

[714]     Over the objections of the Amicus and others, I admitted the evidence of Bruce Klette, the Director of Information Technology Services at the BCVSA. While this evidence was tendered by the AGBC well after the Court-imposed deadline for evidence, Mr. Klette explained the difficulties he faced in producing his analysis, in particular, the need for him to create new search functions specifically for the project. As well, the evidence speaks to issues raised in the evidence of Dr. Kendall concerning teen pregnancy in Bountiful. That evidence was filed within time and there is no doubt that Mr. Klette’s analysis adds to that work and improves upon it.

[715]     While there are issues with Mr. Klette’s methodology (the AGBC frankly so concedes), these are inevitable given the novelty of his work and these weaknesses go to the weight of the evidence. In that regard, I do not treat Mr. Klette’s evidence as definitive on the points he makes. I view it rather as confirming the trends on these issues in Bountiful and the general expert view of what one might expect to see in a polygamous community.

[716]     In brief, I have admitted the evidence because it is probative of facts in issue and I can conceive of no real prejudice to those who oppose its admission.

[717]     It is to be stressed that Mr. Klette, like Dr. Kendall, has not been able to address the issue of the teen pregnancy rate in Bountiful because of the difficulty in obtaining reliable denominator population data for the community.

[718]     That said, Mr. Klette and his staff aggregated electronic birth registration data for three cohorts: Cohort 1 - All British Columbia Births; Cohort 2 - Creston and Cranbrook LHA births (the local health area that includes Bountiful); and Cohort 3 - Bountiful Births.

[719]     The cohorts cover births from 1986 through 2009.

[720]     It was in constructing Cohort 3 - Bountiful Births that Mr. Klette had to resort to his imaginative approach. That Cohort consists of 833 births which were identified as being within Bountiful through a process of deduction from a number of sources of information, including fathers’ surnames and mothers’ usual places of residence characteristic of the Bountiful community, and distinct family names arising out of a review of records from the two Bountiful schools.

[721]     I have reproduced the totals for each Cohort broken down into ten columns with descriptive headings:

Cohort 1—British Columbia Births

Cohort 2—Cranbrook / Creston LHA Births

Cohort 3—Bountiful Births

*For the majority of birth events that occurred prior to 1993, the electronic registry does not capture the father’s age or birth date, reducing the accuracy of this measure in those years. Thus, Mr. Klette did not include any value.

[722]     I note these trends as they pertain to Bountiful: the percentage of teen births is significantly higher than in the other Cohorts; the percentage of mothers resident/born outside Canada is significantly higher; and, the average age difference between parents is significantly higher.

[723]     The Amicus effectively demonstrated that other isolated communities in British Columbia evidence significant teen births. But what is telling in the evidence here is the comparison of Bountiful to Cohort 2, its neighbours.

[724]     As well, the prominence of mothers in Bountiful born outside British Columbia is startling. 126 of the 215 recorded mothers reported places of birth outside the province. Of these, 73 listed their place of birth as Hildale and two as Colorado City. Thirty seven of the 126 had teen births; 32 of those 37 were from Utah, and one was from Arizona. The fact that a large number of girls and women are moving from the FLDS communities in Utah/Arizona to Bountiful is starkly demonstrated.

[725]     FLDS records seized during the raid on the YFZ Ranch in April 2008 also graphically demonstrate the movement of girls and women across the border and the youth of some of the girls involved. The AGBC tendered a number of marriage records for the period 1990 - 2004 through Nick Hanna, a Texas Ranger involved in the execution of search warrants at the compound. When these records are correlated with British Columbia birth registration records, we see:

• Child A - Born in the Bountiful community; married in 2004 at age 13 in Colorado City, Arizona;
• Child B - Born in the Bountiful community; married in 2005 at age 12 at the YFZ Ranch, Texas;
• Child C - Born in the Bountiful community; married in 2005 at age 12 at the YFZ Ranch, Texas;
• Child D - Born in the Bountiful community; married in 2004 at age 18 in Colorado City, Arizona;
• Child E - Born in the Bountiful community; married in 2004 at age 18 in Colorado City, Arizona;
• Child F - Born in Hildale; married in 2004 at age 16 in Colorado City, Arizona; gave birth to a child in Lister, British Columbia at age 17;
• Child G - Born in the Bountiful community; married in 2006 at age 17 in Denver, Colorado;
• Child H - Born in the Bountiful community; married in 2006 at age 18 in Denver, Colorado;
• Child I - Born in the Bountiful community; married in 2006 at age 17 in Denver, Colorado;
• Child J - Born in the Bountiful community; married in 2004 at age 17 in Mesquite, Nevada;
• Child K - Born in Hildale, Utah; married in 2004 at age 15 in Mesquite, Nevada; gave birth to a child in Canyon, British Columbia at age 17;
• Child L - Born in the Bountiful community; married in 2004  at age 16 in Mesquite, Nevada;
• Child M - Born in Hildale, Utah; married in 2003 at age 17 in Hildale, Utah; gave birth to a child in Creston, British Columbia at age 18;
• Child N - Born in Hildale, Utah; married in 2003 at age 17 in Hildale, Utah; gave birth to a child in Creston, British Columbia at age 18;
• Child O - Born in the Bountiful community; married in 1990 at age 17 in Spokane, Washington; gave birth to a child in Creston, British Columbia at age 18;
• Child P - Born in the Bountiful community; married in 1996 at age 17 in Lister, British Columbia;
• Child Q - Born in Hildale, Utah; married in 1998 at age 16 in Hildale, Utah; gave birth to a child in Lister, British Columbia at age 18;
• Child R - Born in the Bountiful community; married in 1998 at age 17 in Sandy, Utah;
• Child S - Born in Hildale; married in 1999 at age 15 in Salt Lake City, Utah; gave birth to children in Creston, British Columbia at ages 16 and 18;
• Child T - Born in the Bountiful community; married in 1999 at age 17 in Salt Lake City, Utah; gave birth to a child in Creston, British Columbia at age 18;
• Child U - Born in the Bountiful community; married in 1999 at age 15 in Sandy, Utah; gave birth to a child in Creston, British Columbia at age 17 and in Lister, British Columbia at age 18;
• Child V - Born in the Bountiful community; married in 1999 at age 17 in Hildale, Utah;
• Child W - Born in the Bountiful community; married in 1999 at age 17 in Hildale, Utah;
• Child X - Born in Hildale, Utah; married in 1999 at age 15 in Colorado City, Arizona; gave birth to children in Lister, British Columbia at ages 16, 17, and 18;
• Child Y - Born in Salt Lake City, Utah; married in 1999 at age 16; gave birth to a child in Cranbrook, British Columbia at age 18;
• Child Z - Born in the Bountiful community; married in 1999 at age 15 in Hildale, Utah;
• Child AA - Born in Cardston, Alberta; married in 2000 at age 16 in Colorado City, Arizona; gave birth to a child in Lister, British Columbia at age 18;
• Child BB - Born in the Bountiful community; married in 2000 at age 15 in British Columbia; gave birth to a child in Creston, British Columbia at age 16;
• Child CC - Born in the Bountiful community; married in 2000 at age 16 in Lister, British Columbia; gave birth to a child in Lister, British Columbia at age 18;
• Child DD - Born in Hildale, Utah; married in 2003 at age 15 in Hildale, Utah; gave birth to a child in Canyon, British Columbia at age 19;
• Child EE - Born in St. George, Utah; married in 2004 at age 16 in Hildale, Utah; gave birth to a child in Creston, British Columbia at age 19.
  • Educational Outcomes

[726]     The AGBC tendered evidence from two witnesses from the British Columbia Ministry of Education regarding educational outcomes in Bountiful. This evidence shows that:

a)    many students who begin Grade 8 at BESS or MHESS are not attending any school in British Columbia by what should be their Grade 12 year;

b)    the graduation rates for students at both schools are well below the provincial average; and

c)     few Bountiful students attend post-secondary institutions, particularly universities.

[727]     Brent Munro, a Manager in the Information Department of the British Columbia Ministry of Education, gave evidence on aspects of school attendance and graduation at BESS and MHESS, as well as the rates of participation at public post-secondary institutions in British Columbia.

[728]     Edward Vanderboom, the Inspector of Independent Schools, explained the system of classification and certification for independent schools in British Columbia, and the historical and current status of both BESS and MHESS within that system.

[729]     Mr. Munro and Mr. Vanderboom were able to track the progress of individual students through both the secondary and post-secondary school systems in British Columbia through the use of the Personal Education Number [PEN], a unique code which follows a student from kindergarten to Grade 12 and on into public post-secondary education in British Columbia.

[730]     The Ministry of Education issues both the British Columbia Certificate of Graduation [Dogwood Certificate], which is awarded to students after they have completed all the necessary requirements for high school graduation, and the British Columbia Adult Graduation Diploma [Adult Graduation Diploma], which is awarded to adults who return to high school and complete all the necessary requirements for graduation.

[731]     The enrollment statistics presented by Mr. Munro demonstrate a distinct downward trend in the levels of enrollment for students from both BESS and MHESS over the course of their high school careers. They show that only 23% of students who began Grade 8 at BESS or MHESS were still enrolled in a school in British Columbia by what should be their Grade 12 year. They also show a much more significant drop-off for males in what should be their Grade 10 year, with enrollment dropping to 51%, compared to 76% for females. Of course, these statistics do not account for the possibility of children moving out of British Columbia, which is not insignificant, considering the evidence of two-way traffic between Bountiful and FLDS communities in the United States.

[732]     In keeping with the steadily decreasing enrollment figures, Mr. Munro’s affidavit also reports very low graduation rates for students at BESS and MHESS.

[733]     To provide effective comparisons for the Bountiful schools, Mr. Munro provided equivalent data for the Province as a whole, for Aboriginal students, and for three other comparable schools, Bowen Island Community School [Bowen Island], Alert Bay Elementary [Alert Bay] and Canyon/Lister Elementary [Canyon].

[734]     Mr. Munro summarizes the results of his research (at para. 16):

Attached to my affidavit and marked as Exhibit “E” is copy of a spreadsheet entitled “Number of students who were in Grade 7 for the first time between 1994/1995 and 2003/2004 who have been awarded a Dogwood or BC Adult Graduation Diploma”. This spreadsheet shows that, for this cohort of students, 7% of female students and 6% of male students who attended BESS were issued either a Dogwood or Adult Diploma. With respect to Mormon Hills, 43% of the females, and 33% of the males were issued either a Dogwood or Adult Diploma. The data shows that for same cohort of students examined on a provincial basis, 78% of females, and 72% of males received a Dogwood or Adult Diploma, and 41% of the Aboriginal students received a Dogwood or Adult Graduation Diploma. With respect to the schools use for comparison the data is as follows:

• Bowen Island - 81% of the females and 85% of the males have been issued a Dogwood or Adult Graduation Diploma;
• Alert Bay - 55% of the females and 47% of the males have been issued a Dogwood or Adult Graduation Diploma; and
• Canyon - 84% of the females and 86% of the males have been issued a Dogwood or Adult Diploma.

[735]     These low graduation rates are explained not only by the enrollment rates, but also by the historical inability of both BESS and MHESS to award the Dogwood Certificate, as Mr. Vanderboom explained in his evidence.

[736]     The Independent School Act, R.S.B.C. 1996, c. 216, creates a scheme whereby the Inspector of Independent Schools may issue a certificate classifying an independent school into one of four groups. Group 1 schools must meet the education requirements established by the Minister of Education and employ British Columbia certified teachers. Group 3 schools (the certification for BESS groups for Grades 11 and 12 since 2004) do not. A school may be classified in different groups for different grade levels.

[737]     Mr. Vanderboom testified that BESS has not held Group 1 status since 1995 and, as such, has not had an approved graduation program since 1995. Without an approved graduation program, BESS students have been unable to attain a Dogwood Certificate through courses taken at BESS. To receive a Dogwood Certificate, they must do so under the auspices of another institution.

[738]     BESS applied for group 1 classification for grades 11 and 12 in 2007, but its application was rejected by Mr. Vanderboom when he was Deputy Inspector for Independent Schools on the basis that its program for Grades 11 and 12 did not meet the educational requirements prescribed by the Minister.

[739]     Since its inception in 2003, MHESS had not held group 1 status for grades 11 and 12. In October 2010, however, MHESS was granted group 1 certification and beginning with the 2010-2011 school year, will be able to award Dogwood Certificates.

[740]     Mr. Munro was also able to use the PEN to track the enrolment of BESS and MHESS students in public post-secondary institutions in British Columbia. Of these students, only one has ever enrolled at a university in British Columbia (Thompson Rivers University). All of the other students were enrolled in a public college or institute. The fields in which credentials were issued included: carpentry, heavy duty mechanics, primary care paramedic, practical nursing, electrical, culinary arts, business administration, and resident care/home support. These fields of study are overwhelmingly practical in nature and provide skills that are needed in the Bountiful community.

[741]     Late in the hearing of the reference, the Fraser Institute released its Report Card on British Columbia’s Elementary Schools 2011, in which, perhaps surprisingly given the tenor of the AGBC’s evidence regarding education outcomes in Bountiful, BESS was ranked tied for first place in the report, with a perfect score. Entirely unsurprisingly, that report made its way into evidence, by way of exhibit marked for identification, the next day.

[742]     As this report was not tendered by an expert who could verify its conclusions and methodology I cannot rely on it to any great extent. However, in any event, this report does not, in fact, contradict the evidence of the AGBC regarding educational outcomes in Bountiful. This report is based on the results of the Foundation Skills Assessment, a standardized test that is administered to Grade 4 and Grade 7 students province-wide. The Foundation Skills Assessment measures individual students’ performance in reading comprehension, writing, and numeracy.

[743]     The AGBC has not alleged that the education students receive in Bountiful schools is deficient in these basic aspects. The effects of polygyny are seen at the secondary grades, where enrolment rates decline precipitously and few students graduate.

[744]     While, as the Amicus points out, there may be a number of reasons why students are not attending secondary school, not completing their Grade 12 graduation within expected timeframes and not attending post-secondary institutions in the province, the evidence supports the view that educational outcomes suffer within close-knit semi-isolated polygamous communities like Bountiful.

ii.               Muslim Community

[745]     I have already referred to the evidence of Ms. Hogben, Executive Director of the Canadian Council of Muslim Women. Her evidence is not only hearsay but also entirely anecdotal and limited to those women that contact her organization seeking help with domestic problems. It does not inform me of the level of polygamy among Muslims in Canada or the degree of harm caused by it.

5.               Stereotyping Adherents of Minority Religious Groups

[746]     The Amicus led the evidence of Professor Campbell, to which I referred briefly above, and that of Dr. Lori Beaman. Dr. Beaman is a Professor of Religious Studies in the Department of Classics and Religious Studies at the University of Ottawa, and the Canada Research Chair in the Contextualization of Religion in a Diverse Canada.

[747]     Both Professor Campbell and Dr. Beaman properly caution against the acceptance at face value of what may be stereotypical portrayals of life in polygamous communities. As they rightly point out, construing unfamiliar practices as harmful without careful examination can result in the perpetuation of stereotypes and an unjustified curtailing of fundamental freedoms.

[748]     Professor Campbell, in her evidence, contrasts many of the predicted harms with the actual life experiences related to her by the 22 women whom she interviewed at Bountiful. They paint a more positive state of affairs than the evidence of the so-called “polygamy survivors” would suggest.

[749]     Similarly, Dr. Beaman said in examination by the Amicus:

Q         And are you aware of any research that’s been undertaken fitting within that model in North America?

A          Specifically in North America there are three - there are three pieces of research with which I am a bit more familiar. One would be - one person who has done a number of bits of things would be Janet Bennion from the United States. Altman and Ginat is a sort of classic study that’s often cited. And in Canada we have Angela Campbell who has done research on - all on polygynous groups. Not all on Fundamentalist Latter-day Saints. Some are - Bennion’s work is on the Allreds, and so - but all looking at polygamy amongst Fundamentalist Latter-day Saints.

Q         You mentioned the Allreds. Is that another polygamous group?

A.         Yes.

Q.        And do you draw anything from the studies?

A          What I draw from the studies is essentially that the results are mixed. Altman and Ginat are really quite clear that while there are some unique or unusual problems that can arise within the context of polygamous relationships, that some people live quite contentedly within the context of polygyny. Campbell’s research has found the same thing and Bennion’s research has also found the same thing. So while all of them identify problems, all of them also stress that polygyny for many people is a satisfying family arrangement.

[Transcript, 13 December 2010, p. 18, ll. 16-46]

[750]     And further:

A          I suppose the other thing that I think is important to consider in these discussions is if we think about stories as representative of the people who are telling them one of the comparisons that I make is thinking about going to a transition house and interviewing all of the women in a transition house, and the stories we would hear would not be pleasant I’m sure. To take those stories and then think that they’re reflective of monogamous relationships would be wrong-headed, I think. We can’t extrapolate from horror stories, and they truly are horrible, to generalizations of about how relationships might look in general. And again I make the comparison with doing those sorts of interviews and thinking about monogamy in general, and then thinking about people who have had negative experiences in polygynous groups, and there are some, and then saying, well, this is how polygynous relationships should be characterized.

...

A          The concern that some of these scholars raised is simply that people who leave sometimes overlay those feelings, those emotions, back onto their entire experience. Not to deny that there are abusive relations, not to deny that there are really horrible experiences, but simply that we need to be careful when reading accounts to not generalize to the group as a whole.

[Transcript, 13 December 2010, p. 19, ll. 22 - 41; p. 20, ll. 13 - 20]

[751]     Finally, I note this portion of Dr. Beaman’s testimony:

A          One of the concerns that I have heard expressed from women who are in conservative religious groups is that outsiders perceive them as somehow duped. One of the phrases that I heard quite frequently from evangelical Christian women was we’re not door mats. And so the idea that somehow they exercise less agency, they don’t participate in decision-making processes and so on and so forth, they’re quite aware of that and they’re quite aware of those criticisms. Any they insist in turn that they do engage in those decision-making processes. And so, for example, in my research on submission and headship one of the findings was, in fact, there was a great deal of mutuality in those relationships.

[Transcript, 13 December 2010, p. 26, ll. 24 - 38]

[752]     I found the evidence of these two witnesses sincere, but frankly somewhat naive in the context of the great weight of the evidence.

[753]     Dr. Beaman, for example, referred to the 2008 raid on the YFZ Ranch in Texas and then stated in her report:

[T]he allegations of abuse were largely unfounded. Atrocity narratives and stereotypes played a role in preventing State authorities from more carefully examining allegations against those living in these communities.

[754]     Yet, Dr. Beaman had no knowledge, when she stated this, of the detailed report of the Texas Department of Family and Protective Services dated 22 December 2008 (included in the Brandeis Brief). That report documented that in a population of approximately 700 to 800 persons (including some 400 children), 12 girls were victims of sexual abuse with the knowledge of their parents, having been married at ages ranging from 12 to 15.

[755]     The investigation found that these girls, and 262 other children, were subjected to neglect under Texas law (failure to remove children from exposure to sexual abuse of other children and neglectful supervision). There were 124 designated perpetrators as a result of this investigation, who included “men who engaged in underage marriages; parents who failed to take reasonable steps to prevent an underage daughter from marrying an older adult male; and parents who placed their child in, or refused to remove their child from, a situation in which the child would be exposed to sexual abuse committed against another child” (at 14).

[756]     In the face of this report, Dr. Beaman’s conclusion that allegations of abuse were “largely unfounded” simply cannot be given credit, and the entire exchange between her and counsel on cross-examination leads one to be wary of those who would downplay the apparent dangers to children in FLDS communities.

[757]     Similarly, Professor Campbell’s evidence suffers from the fact that we do not know who her 22 interviewees were and to whom they were married (indeed, one witness agreed that it could have been to the same man). Professor Campbell accepted the evidence of these individuals at face value. Her evidence also suffers from the fact that Professor Campbell has only spent a limited time in Bountiful on two occasions (in total 12 days including travel time from Montreal).

[758]     Professor Campbell accepted, again at face value, that teen marriages in Bountiful have long been discouraged. Late in the evidentiary phase of this hearing we learned, from a more complete review of documents seized during the raid of the YFZ Ranch in Texas, that this may well not be the case. (I make no findings of fact as this involves criminal conduct and the evidence proffered is simply documents found at the YFZ Ranch.) I recognize that Professor Campbell’s interviewees were predominantly from the Blackmore side of the community and that it may be that teen marriages are a thing of the past within that group. Nevertheless, the YFZ documents suggest that this is not the case with respect to the Bountiful community as a whole.

6. Position of the Challengers

[759]     I have already discussed some of the principal evidence relied upon by the Amicus and his allied Interested Persons in opposing the notion that polygamy (as opposed to some of its individual adherents) causes harm and some of his ripostes to points made by the Attorneys General through their witnesses.

[760]     But to be fair to the Amicus, he has, in the best tradition of his retainer, questioned every aspect of the Attorneys’ case for harm in his final submissions. He has offered a counterpoint on each of the major sources of alleged harm, that is, whether polygamy:

• causes inequality or indignity;
• causes forced marriage;
• causes women to have too many children;
• causes physical or sexual abuse;
• causes mental distress;
• causes “Lost Boys” and, if it does, whether they commit crimes;
• causes the early sexualization of girls;
• undermines democracy; and
• is associated with welfare fraud.

[761]     I offer just a few further examples of the Amicus’ position on the alleged harms.

[762]     With respect to Dr. Henrich, the Amicus seeks to undercut the force of his evidence by aligning him with the controversial views of Robert Wright, the author of The Moral Animal: Why We Are the Way We Are: The New Science of Evolutionary Psychology (New York: Vintage, 1994).

[763]     In referring to what he calls the “marauding unmarried men analysis”, the Amicus writes (at paras. 390 - 391):

To read Mr. Wright’s expression of the theory is, it is respectfully submitted, to know why its adoption would be an incredible departure from the values that this Court should further.

Mr. Wright is not what would be considered a feminist scholar: Mr. Wright is described, “[t]rue to a long tradition of feminist bashing”, as “a popular apologist for evolutionary psychology” who “compares feminism to communism and other ‘ideologies that rested on patently false beliefs about human nature.’ Like the communist dinosaur, feminists refuse, he suggest, to acknowledge the scientific truth about human nature”.

[764]     As the AGBC effectively suggested in reply, however, Dr. Henrich was not called upon to defend the Amicus’ spirited challenge of Mr. Wright’s work, in particular, his theory that monogamy is a compromise among men, not between the sexes.

[765]     With respect to the allegation of the abuse of young girls within the Bountiful community, the Amicus refers, at para. 480, to evidence from various government and law enforcement officials who suggest that in their experience with Bountiful, there had been few, if any, reported incidents of abuse. To the contrary, however, we have the evidence filed by the AGBC relating to the marriages of girls and young teens from Bountiful in the United States between 2004 and 2006.

[766]     The Amicus, as well, relies on the dissenting opinion of Chief Justice Durham in State of Utah v. Holm, 2006 UT 31, who decried the allegedly infirm basis for the “crime within polygamy” argument (para. 480(f)):

In her dissent in State v. Holm, Chief Justice Durham explained that the earlier comments of her Court that certain crimes were “not unusually attendant to the practice of polygamy” (in the Green case, which is cited by the AGBC at para. 404 of his argument and is relied on by Professor Witte at paras. 328-331 of his report as including “a textbook example of an argument that goes back for nearly two thousand years”) was based largely on a Student Note that, on closer scrutiny, she found unconvincing. Chief Justice Durham wrote:

Because the federal First Amendment analysis required only rational basis scrutiny, the court was content to reply on assertions in a student law review piece that polygamy was frequently related to other criminal conduct, together with two local cases, including the case of Green himself. Id. P 40 & n.14. However, reviewing this assessment in light of the heightened scrutiny I believe is called for here, I cannot conclude that the restriction that the bigamy law places on the religious freedom of all those who, for religious reasons, live with more than one woman is necessary to further the state’s interest in this [***156] regard. Upon closer review, the Student Note is unconvincing. The State has provided no evidence of a causal relationship or even a strong correlation between the practice of polygamy, whether religiously motivated or not, and the offenses of “incest, sexual assault, statutory rape, and failure to pay child support,” cited in Green, id. P. 40. [emphasis added]

Indeed, Chief Justice Durham commented that, in any event, “[t]he Note itself predicts that “it is unlikely that a flat-out ban on polygamy would meet the ‘least restrictive means’ required of” a traditional strict scrutiny analysis”.

[767]     Finally, by way of further example, I note the Amicus’ position on the issue of educational outcomes (at para. 492):

Further, whatever the situation with the FLDS (in the event it does have a pattern of early school-leaving, a pattern in common with, for example, the Amish), this could not be attributed to polygamists in North America as a whole. As noted in the Primer issued by the Offices of the Attorneys General of Utah and Arizona, “[a]pproaches to education vary widely” even “among fundamentalist groups and families”. The Primer notes that “[s]ome communities build and staff their own private or charter schools with the goal of providing high quality education for their children”, some fundamentalists require homeschooling (although “with some using correspondence curricula such as the American School program”), and “some parents encourage their teens to graduate from high school early and to begin college before their graduating class” (p. 37). The Apostolic United Brethren, one polygamous group, is identified with “strongly encourag[ing] education”, with most children attending public school although a number of private schools also being sponsored by the group. It also encourages a college education for members desiring one, and “sponsors a limited scholarship program which helps to defray the costs of higher education for some students”. Indeed, in the 1800s, half of the first enrollees in the University of Deseret (now the University of Utah) were women.

[768]     In a somewhat similar vein, the FLDS points out that much of the evidence said to demonstrate the harms of polygamy relates to the FLDS community in the United States and in Bountiful. It says with respect to these harms that the independent variable is not polygamy but, rather, several other practices and features unique to the FLDS which, taken together, distinguish it from most other fundamentalist Mormon communities. These are: (1) a belief in a prophet who receives revelation from God; (2) as a corollary, the belief that the prophet has the right and duty to assign believers in marriage; and, (3) closed and isolated communities which do not tolerate doctrinal dissent or violations of its strict codes of behaviour, the penalty for which ultimately is expulsion from the community.

[769]     The FLDS says these are the independent variables which, if abused, explain virtually all of the evidence of harms alleged by the defenders. They are not harms of polygamy.

[770]     The negative experiences of some within the FLDS, or fundamentalist Mormon polygamy generally, are not the experiences of all. More fundamentally, the differences in their experiences are not based on their family structure, that is to say, polygamy, but on the behaviour of individuals within the community and within relationships.

[771]     This debate on the issue of polygamy and harm leads to this critical question: to what extent need the Court resolve the many conflicts in the massive evidentiary record before it on these matters?  The answer lies in the jurisprudence of the Supreme Court of Canada.

[772]     To justify criminalizing an activity, the government must demonstrate a reasoned apprehension of harm. In Malmo-Levine, a case testing Canada’s marijuana prohibition, the Supreme Court explained (at paras. 78 and 133):

The use of marihuana is therefore a proper subject matter for the exercise of the criminal law power. Butler held, at p. 504, that if there is a reasoned apprehension of harm Parliament is entitled to act, and in our view Parliament is also entitled to act on reasoned apprehension of harm even if on some points "the jury is still out". In light of the concurrent findings of "harm" in the courts below, we therefore confirm that the NCA in general, and the scheduling of marihuana in particular, properly fall within Parliament's legislative competence under s. 91(27) of the Constitution Act, 1867.

...

We do not agree with Prowse J.A. that harm must be shown to the court's satisfaction to be "serious" and "substantial" before Parliament can impose a prohibition. Once it is demonstrated, as it has been here, that the harm is not de minimis, or in the words of Braidwood J.A., the harm is "not [in]significant or trivial", the precise weighing and calculation of the nature and extent of the harm is Parliament's job. Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do. A "serious and substantial" standard of review would involve the courts in micromanagement of Parliament's agenda. The relevant constitutional control is not micromanagement but the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected, as will be discussed.

[773]     The reasoned apprehension of harm is also relevant to the justification analysis under s. 1 of the Charter. Here, the court looks at the legitimacy of the government’s objective and whether the means chosen to achieve that objective are proportionate to the infringement of the claimant’s Charter rights.

[774]     Once it has been established that there is a reasoned apprehension of harm with respect to certain conduct so as to justify its criminalization, there is necessarily a pressing and substantial objective: the prevention of that harm.

[775]     The issue when considering rational connection is whether there is a causal connection between the infringing measure and the government’s objective. Again, once it has been established that there is a reasoned apprehension of harm with respect to certain conduct, measures aimed at preventing that harm will almost always be rationally connected to the legislative objective.

[776]     In Sharpe, the Supreme Court characterized the objective of s. 163.1(4) of the Criminal Code prohibiting the possession of child pornography as, “criminaliz[ing] possession of child pornography that poses a reasoned risk of harm to children” (at para. 82). Obviously, this objective was found to be pressing and substantial.

[777]     As for rational connection, the Court resolved the ambiguities in the social science literature regarding the causal links between pornography and harm to children by holding that the constitutionality of the legislation did not require proof of a causative link but a reasoned apprehension of harm. The Court said this (at para. 85):

This raises a question pivotal to this appeal: what standard of proof must the Crown achieve in demonstrating harm - scientific proof based on concrete evidence or a reasoned apprehension of harm? The trial judge insisted on scientific proof based on concrete evidence. With respect, this sets the bar too high. In Butler, supra, considering the obscenity prohibition of the Criminal Code, this Court rejected the need for concrete evidence and held that a "reasoned apprehension of harm" sufficed (p. 504). A similar standard must be employed in this case.

[778]     In light of that measure of the burden of proof, it is clear that I need not test the Attorneys’ case on harm against the balance of probabilities standard. I will set out my conclusions on this issue when I develop the Charter analysis below. But this conclusion does obviate the need here to exhaustively review the entire record on the question of harm.

7.               Summary of Apprehended Harms

[779]     Drawing on principles of evolutionary biology tested against evidence from psychology, anthropology, economics and other disciplines, Dr. Henrich posits that polygyny has a number of predictable effects:

a)    It creates a pool of unmarried men with the attendant increase in crime and anti-social behaviour;

b)    The increased competition for women creates pressure to recruit increasingly younger brides into the marriage market;

c)     This competition causes men (as fathers, husbands and brothers) to seek to exercise more control over the choices of women, increasing gender inequality and undermining female autonomy and rights. This is exacerbated by larger age disparities between husbands and wives in both polygynous and monogamous relationships; and

d)    Men reduce investment in wives and offspring as they spread their resources more thinly across larger families and increasingly channel those resources into obtaining more wives.

[780]     Male control features prominently in Dr. Grossbard’s economic analysis of polygyny. That analysis reveals that while polygyny increases the value of women in the marriage market, women do not realize the added value since men manipulate social institutions in ways that facilitate their control of women. These institutions include early and arranged marriages, the payment of brideprice, easy divorce and the devaluing of romantic love. Among the costs are depressed mental health for women and poorer outcomes for their children.

[781]     These and other harms recur consistently in the social science literature.

[782]     Women in polygynous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygynous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They lack reproductive autonomy, and report high rates of marital dissatisfaction and low levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient.

[783]     Children in polygynous families face higher infant mortality, even controlling for economic status and other relevant variables. They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygynous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security. Children are also at enhanced risk of psychological and physical abuse and neglect.

[784]     Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of problems for both mother and child.

[785]     The sex ratio imbalance inherent in polygyny means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives. These young men and boys often receive limited education as a result, and must navigate their way outside their communities with few life skills and little social support.

[786]     Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes.

[787]     Polygyny has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour. Polygyny also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygynous communities.

[788]     A great many of the foregoing effects are not limited to particular cultures or geographic locations; they are universal. Dr. McDermott’s statistical analysis of polygyny reveals that throughout the world, women in polygynous societies sustain more physical and sexual abuse. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They are more likely to be subject to sex trafficking and genital mutilation. They receive less equal treatment than men and encounter more discrimination under the law.

[789]     Girls are less likely to be educated, restricting a key factor allowing for upward mobility and economic independence. Up to half of the boys in highly polygynous societies are ejected from their communities with incalculable negative effects.

[790]     Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice. Polygynous states spend more on defence on average, leaving fewer resources for domestic infrastructure and projects geared toward health and education.

[791]     Moving closer to home, these harms are consistent with what clinical experts in North America have observed in their patients from polygynous backgrounds. Dr. Beall spoke of PTSD and other mental health conditions in his patients from fundamentalist Mormon communities. Dr. Stickevers’ Muslim patients in polygynous relationships had higher rates of depression and anxiety and lower levels of self-esteem than her monogamously married patients. Dr. Hassouneh’s Muslim patients had similar symptoms.

[792]     The evidence of the witnesses who recounted their personal experiences living in polygynous families put a human face on many of the harms identified by the experts and in the social science literature. To be fair, some of these witnesses related positive experiences with polygyny. However, their accounts stand against the overwhelming weight of the evidence that polygyny has harmful consequences for both the individuals involved and the societies of which they are a part.

[793]     Finally, the evidence relating to Bountiful reveals higher rates of teen pregnancy, the movement of young girls between the community and the United States for the purpose of marriage, and poorer educational outcomes.

G.              Canada’s International Obligations

[794]     The AG Canada and several of his allied Interested Persons (primarily the CCRC/Asper Centre and West Coast LEAF) argue that Canada’s obligations under international treaties and customary international law support the prohibition on polygamy.

[795]     These participants also argue, as a matter of comparative law, that a review of state practice demonstrates a growing trend to prohibit polygamy worldwide, which supports the continued criminalization of the practice through s. 293.

[796]     These principles of international human rights law and comparative law arise primarily in the s. 1 analysis to support arguments that any infringement of Charter rights by s. 293 is reasonably justified.

[797]     Two expert witnesses gave evidence on Canada’s obligations regarding polygamy under international human rights law.

[798]     The AG Canada tendered the evidence of Dr. Rebecca Cook, Chair of International Human Rights Law at the University of Toronto Law School. Dr. Cook was qualified as an expert in international human rights law with a particular focus on women’s rights and states’ obligations.

[799]     Professor Turley, of whom mention has already been made, responded to some aspects of Dr. Cook’s evidence in his affidavit.

1.               Canada’s Obligations under International Treaties

[800]     Several participants submit that Canada is obligated by conventional international law to take “all available measures” to eliminate polygamy.

[801]     The AG Canada has identified the following four treaties to which Canada is a state party as relevant to polygamy:

• the International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, Can T.S. 1976 No. 47, 6 I.L.M. 368 [ICCPR];
• the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3; GA Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 52; UN Doc. A/6316 [ICESCR];
• the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 [CRC]; and
• the Convention on the Elimination of All Forms of Discrimination against Women 18 December 1979, 1249 U.N.T.S. 13; 34 UN GAOR Suppl. (No. 21) (A/34/46) at 193; UN Doc. A/Res/34/180 [CEDAW].

[802]     As the Amicus points out, none of these treaties includes the words “polygamy” or “polygyny” in their text. Accordingly, any obligation Canada may have to prohibit polygamy as a state party arises only through interpretations of their more general provisions.

[803]     Each treaty has its own treaty body that monitors state compliance. These bodies review the periodic reports produced by states parties and issue concluding observations that provide an assessment of the state parties’ efforts to fulfill their treaty obligations. They also issue their own general comments or recommendations which are intended to provide guidance to states parties in interpreting the treaties and complying with their obligations.

a)               Statements by International Treaty Bodies

[804]     Dr. Cook’s basic conclusion is that Canada has obligations under each of these treaties, as interpreted by each respective treaty body, to take “all appropriate measures” to eliminate polygyny.

[805]     These treaty bodies conceptualize the harms of polygyny on two different levels. Dr. Cook refers to these as the “inherent wrongs” and “associated harms.”

[806]     On one level, all of these treaty bodies consider systems of polygamy, inevitably polygynous, as constituting an “inherent wrong” that offends each respective treaty’s principle of equality. In her testimony, Dr. Cook summarized the conclusions of these treaty bodies with regard to the inherent wrong of polygyny:

Well, the Human Rights Committee sees the inherent wrong of polygamy of the structuring of the marital relationship in asymmetrical ways, that is one man taking many wives, as inherently wrong and offensive to women’s dignity and equality.

The Women’s Committee thinks about the inherent wrong not only because of the unequal structuring of the marriage relationship, but also because that unequal structuring of the marriage relationship can lead to very negative stereotypes about women that diminish their perceptions of themselves, diminish what they think they can do within the family and in the community. So there’s variations on the theme between those two committees.

[Transcript, 6 January 2011, p. 19, l. 34 - p. 20, l. 1]

[807]     On another level, these treaty bodies recognize the harms that are the consequence of the practice of polygamy; particularly where they refer to polygamy as a “traditional harmful practice”.

[808]     As the Amicus observes, none of these treaty bodies has examined the issue of polygamy in a focused and comprehensive way as in this reference. However, their findings of harm are essentially consonant with the evidence of harm before this Court.

[809]     These treaties provide a measure of flexibility to states in terms of how they address polygamy and its consequential harms. Dr. Cook describes the obligation as being to take “all appropriate measures” to eliminate polygamy (para. 134). She describes the significance of such terminology at paras. 142-43 of her report:

The use of the term “all” available measures, rather than “any” such measures requires states to be comprehensive in their approach. State practice indicates that, in order for measures to eliminate polygyny to be effective, states feel obligated to use a mix of legal, educational, and social measures. The legal measures include constitutional, civil, and criminal prohibitions.

The challenge is to identify what measures are “appropriate” in what contexts and why. To achieve effectiveness, the nature, types and mix of measures will vary according to context. Where polygyny is deeply entrenched, it might be that criminal law measures are needed to demonstrate the inherent wrongs of polygyny, to punish parties officiating in, facilitating and participating in polygynous unions, and to deter future such practices. Where polygyny is prohibited in law, but persists in practice, positive measures might also be required, such as educational measures, judicial training programs and public awareness campaigns, particularly to eliminate traditions and stereotypes of women that facilitate polygyny.

[810]     Crucially, however, this discretion has limits. These measures must be appropriate and effective. In the context of CEDAW, “the ultimate arbiter is the Women’s Committee itself on whether a particular measure is appropriate” (Transcript, 6 January 2011, p. 32, ll. 37-39).

[811]     Another key attribute of these treaty bodies is that they impose positive obligations on the state to not only prevent treaty violations through state conduct, but also through the conduct of private actors. This is a different manner of rights protection than that provided by the Charter, which applies only to state action.

[812]     As Dr. Cook notes, each of these treaty bodies emphasizes slightly different aspects of polygyny related to their respective treaties. I will review some of the aspects of each.

i.                 CEDAW

[813]     Dr. Cook referred most extensively in her report to the provisions of CEDAW and the conclusions of the CEDAW Committee. The text of CEDAW itself does not explicitly mention polygyny, but the CEDAW Committee has strongly and consistently stated that polygyny violates a number of treaty provisions.

[814]     The articles of CEDAW that Dr. Cook stated were implicated by polygyny include:

• article 1 - discrimination;
  • article 2(f) - state obligations to eliminate discriminatory laws and practices;
  • article 5(a) - sex role stereotyping and prejudice;
  • article 14 - rural women; and
  • article 16 - marriage and family life.

[815]     The CEDAW Committee strongly condemned polygamy in its General Recommendation No. 21, Equality in Marriage and Family Relations, UN CEDAWOR, 13th Sess., (1994), U.N. Doc. A/49/38 (at para. 14):

States parties' reports also disclose that polygamy is practised in a number of countries. Polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches provisions of article 5(a) of the Convention.

This passage leaves no doubt that the CEDAW Committee considers the practice of polygamy a violation of the treaty.

[816]     The conclusion in General Recommendation No. 21 is reinforced by the CEDAW Committee’s concluding observations. The Committee has consistently called upon state parties to implement measures aimed at eliminating polygamy.

ii.               ICCPR

[817]     The Human Rights Committee, which monitors compliance with this treaty, has also strongly expressed its disapproval of polygamy.

[818]     In General Comment No. 28: Equality of rights between men and women (article 3), UN HRCOR, 68th Sess., (2000), U.N. Doc. CCPR/C/21/Rev.1/Add.10, the HRC criticized polygamy (at para. 24):

It should also be noted that equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle. Polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently, it should be abolished wherever it continues to exist.

[819]     The HRC has also commented on polygamy in its concluding observations. The provisions of the treaty that have been held to be violated by the practice are article 3, which requires state parties to undertake to ensure that women and men enjoy all rights under the Covenant equally, and article 26, which prohibits discrimination on the basis of sex, as well as several other grounds.

[820]     Article 23(4) of the ICCPR, which requires state parties to “take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage” is also infringed by any martial system that allows polygyny.

iii.              CRC

[821]     In addition to the references in Dr. Cook’s report, the submissions of the BCTF and the CCRC/Asper Centre also refer to the CRC.

[822]     According to these submissions, the following provisions of the CRC are implicated by the practice of polygamy:

a)    article 4 - protection of rights;

b)    article 19(1) - protection from all forms of violence;

c)     article 24(3) - health and health services;

d)    article 28 - right to education;

e)    article 29(b) and (d) - goals of education;

f)      article 34 - sexual exploitation; and

g)    article 36 - other forms of exploitation.

[823]     The Committee on the Rights of the Child has not apparently mentioned polygamy in its General Comments. Dr. Cook argues that comments on the importance of preventing teen pregnancy in General Comment No. 4, Adolescent health and development in the context of the Convention on the Rights of the Child, UN CRCOR 33rd Sess., (2003), U.N.Doc. CRC/GC/2003/4, indicate that polygamy falls under the ambit of article 24(3) of the CRC, which requires states parties to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.”

[824]     Moreover, the Children’s Committee has referred to polygamy in its concluding observations. In Concluding Observations of the Committee on the Rights of the Child: Burkina Faso, UN CRCOR, 53rd Sess., (2010), U.N. Doc. CRC/C/BFA/CO/3-4 at paras. 44-45, for example, the Committee identified polygamy as a discriminatory custom and tradition:

The Committee urges the State party to ensure effective implementation of its National Gender Policy and to strengthen its National Policy on Education to Family Life and set up educational specific programmes for parents and children that challenge discriminatory customs and traditions and stereotypic attitudes regarding the roles and responsibilities of women and girls in the family and promote equal sharing of parental responsibility. The Committee also urges the State party to discourage polygamy by applying legal and administrative measures and conducting awareness-raising campaigns on its adverse effects on children. The Committee further urges the State party to take all the necessary measures to combat domestic violence. [Emphasis added.]

[825]     As with the other treaties, Canada has positive obligations to prevent violations of the CRC. These positive obligations are heightened with regard to the CRC as children are, of course, inherently less able to advocate on their own behalf.

[826]     The negative impacts of polygyny on education, that have been documented elsewhere, also raise issues under articles 28 and 29 of the CRC, which protect the right of the child to education.

iv.              ICESCR

[827]     The Committee on Economic, Social and Cultural Rights [CESCR] has commented on polygamy less extensively than the other treaty bodies. It has not discussed polygamy in its general comments, but has mentioned it briefly in several concluding observations.

[828]     In General Comment No. 16, The Equal Right of Men and Women to the Enjoyment of All Economic, Social, and Cultural Rights (Art. 3 of the Covenant), UN ESCOR 34th Sess., (2005), U.N. Doc. E/C.12/2005/4, the CESCR emphasized the crucial importance of equality provisions by referring to article 3 of the ICESCR.

[829]     There have been some comments in the CESCR’s concluding observations that confirm the committee’s interpretation that polygamy falls under the ambit of article 3.

[830]     Dr. Cook also argues that articles 12 and 13 of ICESCR are implicated by the practice of polygamy. Article 12 recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The CESCR has not apparently specifically identified polygamy as violating this provision, however, its General Comment 14, Article 12: The Right to the Highest Attainable Standard of Health, UN ESCOR, 22nd Sess., (2000), U.N. Doc. E/C.12/2000/4, suggests it does (at para. 21):

It is also important to undertake preventive, promotive and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights.

[831]     It would be consistent with the findings of other treaty bodies to conclude that for the purposes of article 12 of ICESCR, polygamy is a “harmful traditional cultural practice” and that, therefore, article 12 would impose an obligation on Canada to prevent it. This is particularly so given the reports that indicate the practice of polygamy increases the danger a woman will be exposed to HIV.

[832]     Article 13 of ICESCR recognizes “the right of everyone to education.” In this sense, the concerns regarding the impact of polygamy on children’s education overlap with the issues discussed above under the CRC.

b)               Arguable Limitations on a State’s Ability to Criminalize Polygamy

[833]     These treaties contain several provisions that are similar to those sections of the Charter, such as freedom of religion, which the challengers allege are violated by s. 293. One might therefore expect to find statements from these treaty bodies that suggest criminalization (or other means of regulation of polygamy) violates these treaties in some way.

[834]     However, I have been presented with no authority from any of these international treaty bodies that suggests polygamy may be a practice that is protected by any of their respective treaties.

[835]     In his report, Professor Turley refers to several of these provisions and argues, largely by analogy to issues such as homosexuality, that the criminalization of polygamy conflicts with modern understandings of human rights (at para. 229):

The clear trend of human rights in the last century has been to protect the right of individuals to make such choices absent a clear showing of harm to others or society ? beyond injury to majoritarian moral tenets.

[836]     As I have set out in some detail earlier in these reasons, there is considerable evidence that polygamy causes a range of harms to its participants and to society more generally. Furthermore, while it can be said that there is a trend toward protecting individual rights, it is also the case that international human rights law demonstrates a particular concern for the protection of vulnerable persons.

[837]     In her report, Dr. Cook argues that, properly interpreted, rights under these treaties such as the right to privacy and family life (ICCPR, article 17), the right to freedom of religion (ICCPR, article 18), and the right to enjoy one’s culture (ICESCR, article 15) do not limit the state’s ability to criminalize polygamy.

[838]     Although the criminalization of polygamy may superficially seem to conflict with some provisions of these treaties, it does not appear that any of the relevant treaty bodies have found the practice of polygamy to be protected. This is not surprising, giving their strong condemnation of polygamy.

[839]     I am satisfied that the consensus of these international treaty bodies is that the practice of polygamy violates various provisions of the treaties that Canada has ratified. As a state party, Canada has obligations to take all appropriate measures to eliminate polygamy. This includes an obligation to prevent violations of these treaties by private actors through their practice of polygyny.

[840]     While it is true, as the Amicus contends, that the obligation to take all appropriate measures does not necessarily require criminalization given the flexibility that state parties are accorded in selecting the means of compliance, criminalization is, nevertheless, one available measure by which state parties can endeavour to eliminate polygamy.

2.               Customary International Law

[841]     Dr. Cook suggests there is evidence of an emerging customary rule against sex discrimination. At para. 73 of her report, she further links this customary law rule to “the dominant trend in international state practice … to restrict and in some cases prohibit the practice of polygamy”.

[842]     Determining whether Canada has an obligation to prohibit polygamy due to a binding norm of customary international law is a far murkier process than determining Canada’s treaty obligations. Customary obligations are created by consistent and uniform state practice that is based on an understanding that the practice is required by law (opinio juris). Although the state practice must be “uniform”, this does not require that every state follow the practice.

[843]     Polygamy is still permitted in many countries worldwide, particularly in Africa and the Middle East. I note that in her categorization of countries according to the level of polygyny, Professor McDermott indicates that in at least 47 of 171 countries, more than five per cent of women are in polygynous marriages. In such circumstances, it simply cannot be said that state practice with regard to polygamy is consistent and uniform, let alone that states conduct themselves in a manner that suggests an understanding that they are required by law to prohibit polygamy.

3.               Comparative Law

[844]     The evidence of state practice prohibiting polygamy, though falling well short of the standard to establish a rule of customary international law, may still be relevant as a matter of comparative law. In United States v. Burns, 2001 SCC 7, for example, the Supreme Court of Canada considered evidence of international trends in the context of the death penalty.

[845]     The AG Canada submits that a majority of states in the world prohibit polygamy and there is a growing trend in that direction. This submission is based primarily on the evidence of Dr. Cook, who states that a majority of states in the world prohibit polygyny, though she does not provide any exact figures. She does note that polygyny is prohibited throughout the Americas, Western and Eastern Europe and large parts of Asia.

[846]     The Amicus disputes the AG Canada’s assertion, arguing that s. 293 has no equivalent in most foreign legal systems, which simply have bigamy provisions akin to s. 290. On that basis, he claims that the AG Canada wrongfully conflates a failure to provide legal recognition to polygyny with a criminal prohibition.

[847]     In its Final Submissions, West Coast LEAF provides a summary of efforts in recent years to prohibit exploitative polygyny (at para. 29):

(a)        In Benin, the Constitutional Court determined that polygyny was outlawed on the basis that such a prohibition was consistent with its constitution and in particular, its constitutional guarantee of equality of men and women.

(b)        The Australia Law Reform Commission refused to recommend the recognition of the legal status of polygyny in 1992 because it offended women’s rights.

(c)        Polygyny has been outlawed in France, Turkey, and Tunisia (amongst other states).

(d)        In Mauritius, the decision of Bhewa v. the Government of Mauritius upheld the prohibition on polygamy, applying the ICCPR.

(e)        In Indonesia, the decision of M. Insa, S.H., Decision Number 12/PUU-V/2007, (The Constitutional Court of the Republic of Indonesia) (2007) held that the judicial and spousal permission requirements for polygyny were reasonable and constitutional limits on freedom of religion.

(f)         In the United States, several decisions deal with related matters:

(i)         In State of Utah v. Green, a bigamy conviction was upheld despite a freedom of religion claim;

(ii)        In Bronson v. Swenson, the refusal to grant a marriage license was permitted, despite a free exercise of religion claim;

(iii)       In State of Utah v. Holm a bigamy conviction was upheld against a free exercise of religion claim.

[848]     Several of the items on this list do not necessarily support this proposition. It cannot really be said that the prohibitions on polygamy enacted in Turkey (1926) and Tunisia (1956) are recent. The recommendation against recognition of polygamous unions in Australia merely reinforced the status quo, as did the American decisions from Utah.

[849]     The strongest examples of recent prohibitions on polygamy are those from France and Benin. However, the French government did not prohibit polygamy in 1993 as such, but, abandoning an earlier family reunification program, merely changed immigration laws so that, with retroactive effect, only one spouse would be recognized for each immigrant. As discussed earlier, under the former family reunification program the number of polygynous families in France had grown significantly, leading to serious social difficulties.

[850]     There is not sufficient evidence for me to conclude that there is a distinct trend in state practice towards prohibiting polygamy. While there are some relevant examples of states taking steps to restrict polygamy, they are insufficient to constitute a trend.

[851]     Although a collective trend towards restricting polygamy has not been demonstrated, the existing practices of individual comparable jurisdictions are still relevant to this reference in some respects. This is particularly so with respect to the United States, whose own trials and tribulations with polygamy influenced the drafting of s. 293, and France, which has recent experience with the difficulties that arise with a significant level of polygamy.

VI.            PURPOSE AND INTERPRETATION OF SECTION 293

[852]     I repeat s. 293 for convenience:

(1)        Every one who

(a)        practises or enters into or in any manner agrees or consents to practise or enter into

(i)         any form of polygamy, or

(ii)        any kind of conjugal union with more than one person at the same time,

whether or not it is by law recognized as a binding form of marriage; or

(b)        celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagrah (a)(i) or (ii),

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(2)        Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or upon the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.

[853]     As Parliament's objective in enacting this provision informs both its interpretation and the Charter discussion, I turn next to this issue.

A.              Purpose of Section 293

1.               Legislative History of Section 293

[854]     In 1886, the year before the arrival of Charles Ora Card and his Mormon followers in Canada, Parliament enacted An Act respecting Offences relating to the Law of Marriage, R.S.C. 1886, c. 161. The Act contained four offences: unlawfully solemnizing or procuring unlawful solemnization of marriage (s. 1); procuring a feigned marriage (s. 2); solemnizing marriage in violation of provincial law (s. 3); and, bigamy (s. 4).

[855]     Virtually identical to England’s bigamy prohibition, s. 4 read, in material part:

Every one who, being married, marries any other person during the life of the former husband or wife, whether the second marriage takes place in Canada, or elsewhere, is guilty of felony, and liable to seven years’ imprisonment:

[856]     There remained a question, however, whether this provision was sufficient to capture Mormon plural marriage or, for that matter, Aboriginal or “Mohammedan” polygamy. The concern was that a conviction for bigamy required an attempt to enter into two or more legal marriages, and that Mormon “spiritual” marriages conducted in private ceremonies might be technically exempt from the prohibition: see B. Carmon Hardy, “Mormon Polygamy in Mexico and Canada: A Legal and Historiographical Review” in Brigham Y. Card et al., eds., The Mormon Presence in Canada (University of Edmonton: Alberta Press 1990) 186 [Hardy, Mormon Polygamy in Mexico and Canada] at 196.

[857]     Another potential loophole in the bigamy provision was identified by Anthony Maitland Stenhouse, the former Member for Comox in the British Columbia Legislative Assembly. In 1888, he resigned his seat, announced his conversion to Mormonism and became an ardent and vocal defender of polygamy, though, ironically, he remained a lifelong bachelor.

[858]     In a letter to the Lethbridge News dated 20 November 1889, Stenhouse noted the bigamy offence’s requirement for sequential marriage and proposed that it did not apply to a simultaneous plural marriage. As he pointed out (McCue, “Anthony Maitland Stenhouse” at 120):

There is one case of polygamy ... whose bearing on the law ... has [not] yet been ascertained. The case of the bridegroom with two brides is not an impossibility. Nor is it inconceivable that he might, as a bachelor, be duly wedded to both ladies at the same moment, neither of the wives preceding the other. In view of such a case the question arises, ... would the parties be liable to criminal prosecution.

... As an undergraduate in matrimony, I propose to test the law as soon as I have found the ladies.

[859]     Legislation which was to follow removed all doubt in both respects.

[860]     The first iteration of a criminal prohibition against polygamy came in Bill F, An Act to amend “An Act respecting Offences relating to the Law of Marriage”, 4th Session, 6th Parl., 1890, which was introduced into the Senate on 4 February 1890. The Bill would have added polygamy to the offences contained in the Act respecting Offences relating to the Law of Marriage in the following terms:

5.         Everyone who, whether in pursuance of, or under pretext of any religious belief, or otherwise, by the rites, ceremonies, forms, rules or customs of any denomination, sect or society, religious or secular, or by any form of contract, or by mere mutual consent, or by another other method whatsoever, but in a manner not recognized as a binding form of marriage by the law of the place in which the offence against this Act is committed, and whether such offence is committed in Canada or elsewhere;

(a)        Practises, agrees to practise, or consents to practise, any form of polygamy; or

(b)        Practices, agrees to practise, consents to practise, enters into, agrees to enter into or consents to enter into any  kind of conjugal union with more than one person of the opposite sex at the same time; or

(c)        Practices, agrees to practise, consents to practise, enters into, agrees to enter into, or consents to enter into what among the sect called “The Church of Jesus Christ of Latter Day Saints,” commonly known as Mormons, are known as spiritual or plural marriages; or

(d)        Lives, cohabits, agrees to live or cohabit, or consents to live or to cohabit, in any kind of conjugal union with a person who is married or with a person who lives or cohabits with another or others in any kind of conjugal union;

2.         And every one who,

(e)        Celebrates, is a party to, or assists in any such rite or ceremony which purports to make binding or to sanction any of the sexual relationships mentioned in paragraphs (a), (b) (c) and (d) of this section; or

(f)         Procures, enforces, enables, is a party to, or assists in the compliance with, or carrying out of, any such form, rule or custom which so purports; or

(g)        Procures, enforces, enables, is a party to, or assists in the execution of any such form of contract which so purports, or the giving of any such consent which so purports;

Is guilty of a misdemeanor, and liable to imprisonment for two years, or to a fine of five hundred dollars, or to both such imprisonment and fine:

2.         In any indictment for any offence mentioned in paragraphs (a) (b) (c) and (d) of the preceding sub-section, it shall be sufficient to describe the offence in the language of the paragraph applicable thereto; and no averment nor proof of the method in which the sexual relationship charged was entered into, agreed or consented to, shall be necessary in any such indictment, or upon the trial of the person thereby charged; nor shall it be necessary upon such trial to prove carnal connection had or intended to be had between the parties implicated;

3.         Upon any trial for any offence against this section, the wife or husband of the defendant shall be a competent witness for or against the defendant.

4.         This section shall not apply to any Indian belonging to a tribe or band among whom polygamy is not contrary to law, nor to any person not a subject of Her Majesty and not resident in Canada.

[861]     Bill F would have also disqualified anyone convicted of any offences in the Act respecting Offences relating to the Law of Marriage from running for or holding public office, voting or serving as a juror.

[862]     When Bill F went to committee, one senator expressed concern about the provision which would have exempted from its ambit “any Indian belonging to a tribe or band among whom polygamy is not contrary to law, nor to any person not a subject of Her Majesty and not resident in Canada”. He said: “I think that is a very dangerous exception to make, because it may have the effect of excepting the very class to whom the Bill is intended to apply” (Debates in the Senate, 6th Parl., 4th Sess., (25 February 1890), at 142 (Hon. Mr. Dickey)).

[863]     Bill F was withdrawn one month later, as it was overtaken by a criminal law amendment bill introduced in the House of Commons by the Minister of Justice on 7 February 1890. Bill 65, An Act further to amend the Criminal Law, proposed the addition of a polygamy offence to the Act respecting Offences relating to the Law of Marriage in the following language:

5.         Every one who practises, or, by the rites, ceremonies, forms, rules or customs of any denomination, sect or society, religious or secular, or by any form of contract, or by mere mutual consent, or by any other method whatsoever, and whether in a manner recognized by law as a binding form of marriage or not, agrees or consents to practise or enter into -

(a)        Any form of polygamy; or

(b)        Any kind of conjugal union with more than one person at the same time; or

(c)        What among the persons commonly called Mormons is known as spiritual or plural marriage; or

(d)        Who lives, cohabits, or agrees or consents to live or cohabit, in any kind of conjugal union with a person who is married to another, or with a person who lives or cohabits with another or others in any kind of conjugal union; and

2.         Every one who, -

(a)        Celebrates, is a party to, or assists in any such rite or ceremony which purports to make binding or to sanction any of the sexual relationships mentioned in sub-section one of this section; or

(b)        Procures, enforces, enables, is a party to, or assists in the compliance with, or carrying out of, any such form, rule or custom which so purports; or

(c)        Procures, enforces, enables, is a party to, or assists in the execution of any such form of contract which so purports, or the giving of any such consent which so purports, -

Is guilty of a misdemeanor, and liable to imprisonment for five years and to a fine of five hundred dollars.

3.         In any charge or indictment for any offence mentioned in sub-section two of this section it shall be sufficient to describe the offence in the language of that sub-section applicable thereto; and no averment or proof of the method in which the sexual relationship charged was entered into, agreed to, or consented to, shall be necessary in any such indictment, or upon the trial of the person thereby charged; nor shall it be necessary upon such trial to prove carnal connection had or intended to be had between the parties implicated.

[864]     On second reading in the House of Commons, Sir John Thompson described the intent of this provision:

Section 9 deals with the practice of polygamy, which I am not aware yet exists in Canada, but which we are threatened with; and I think it will be much more prudent that legislation should be adopted at once in anticipation of the offence, if there is any probability of its introduction, rather than we should wait until it has become established in Canada.

[Debates of the House of Commons, 6th Parl., 4th Sess., (10 April 1890), at 31644]

[865]     Closing the loophole identified by Stenhouse, Bill 65 also substituted the bigamy provision with the following:

Every one who, being married, marries any other person during the life of the former husband or wife, whether the second marriage takes place in Canada or elsewhere, and every male person who, in Canada, simultaneously, or on the same day, marries more than one woman, is guilty of felony, and liable to seven years’ imprisonment.

[866]     Bill 65 received royal assent and came into force on 16 May 1890.

[867]     The Criminal Code, 1892 was Canada’s first comprehensive criminal code. It consolidated most of Canada’s pre-existing criminal laws, including the Act respecting Offences relating to the Law of Marriage.

[868]     With some rewording, the bigamy offence in s. 4 of the Act became s. 275 of the Criminal Code, 1892. S.C. 1892, c. 29. Section 5 of the Act, the polygamy prohibition, became ss. 278 and 706 of the Criminal Code, 1892.

[869]     Included in Part XXII, which was entitled “Offences Against Conjugal and Parental Rights - Bigamy - Abduction”, s. 278 read:

278.     Every one is guilty of an indictable offence and liable to imprisonment for five years, and to a fine of five hundred dollars, who -

(a)        practises, or, by the rites, ceremonies, forms, rules or customs of any denomination, sect or society, religious or secular, or by any form of contract, or by mere mutual consent, or by any other method whatsoever, and whether in a manner recognized by law as a binding form of marriage or not, agrees or consents to practise or enter into

(i)         any form of polygamy;

(ii)        any kind of conjugal union with more than one person at the same time;

(iii)       what among the persons commonly called Mormons is known as spiritual or plural marriage;

(iv)       who lives, cohabits, or agrees or consents to live or cohabit, in any kind of conjugal union with a person who is married to another, or with a person who lives or cohabits with another or others in any kind of conjugal union; or

(b)        celebrates, is a party to, or assists in any such rite or ceremony which purports to make binding or to sanction any of the sexual relationships mentioned in paragraph (a) of this section; or

(c)        procures, enforces, enables, is a party to, or assists in the compliance with, or carrying out of, any such form, rule or custom which so purports; or

(d)        procures, enforces, enables, is a party to, or assists in the execution of, any such form of contract which so purports, or the giving of any such consent which so purports.

[870]     Section 706 set out separately the rule of proof formerly contained in ss. 5(3) of the Act:

706.     In the case of any indictment under section two hundred and seventy-eight (b), (c) and (d), no averment or proof of the method in which the sexual relationships charged was entered into, agreed to, or consented to, shall be necessary in any such indictment, or upon the trial of the person thereby charged; nor shall it be necessary upon such trial to prove carnal connection had or intended to be had between the persons implicated.

[871]     Sections 278 and 706 were renumbered and underwent minor tinkering in the years following but the provisions remained largely as set out above until 1954 when the Criminal Code underwent a general overhaul.

[872]     In 1951, the federal government appointed a Royal Commission on the Revision of the Criminal Code with terms of reference relating primarily to the updating and simplification of the Code.

[873]     The Commission presented its final report and a draft bill to the government in February 1952. The final report made no comment on the polygamy provision. The draft bill proposed the following language:

243. (1)            Every one who

(a)        practises or enters into or in any manner agrees or consents to practise or enter into

(i)         any form of polygamy, or

(ii)        any kind of conjugal union with more than one person at the same time,

whether or not it is by law recognized as a binding form of marriage; or

(b)        celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (i) or (ii) of paragraph (a),

is guilty of an indictable offence and is liable to imprisonment for five years.

(2)        Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or upon the trial of the accused, nor is it necessary upon the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.

[874]     The Commission’s final report and draft bill were tabled in the House of Commons in April 1952. The draft bill was introduced into the Senate in May 1952 as Bill H-8. After second reading, Bill H-8 was referred to the Standing Committee on Banking and Commerce, which in turn referred it to a subcommittee. The subcommittee did not consider s. 243, as it was on its list of provisions “[c]hanged in form only”. A Department of Justice briefing note regarding the bill indicated that the former polygamy provision, s. 310, “has been redrawn to simplify”.

[875]     The bill and its successors went to committee and subcommittee a further number of times. Each time, s. 243 was approved without amendment or comment. The final iteration of the bill, Bill 7, received assent and was proclaimed into force as of 1 April 1955.

[876]     Some sources credit the advocacy of John Blackmore, Member of Parliament for Lethbridge and uncle of Winston Blackmore, for the removal of the reference to Mormon spiritual or plural marriage from the Code provision: see Bramham, Secret Lives of Saints at 49. Hardy attributes the change to efforts on the part of both John Blackmore and Solon Low, Member of Parliament for Peace River (Mormon Polygamy in Mexico and Canada at footnote 76).

[877]     Since 1954, the polygamy prohibition has undergone renumbering but has otherwise remained unchanged.

2.               Conclusion on Purpose of Section 293

[878]     Parliament’s purpose in enacting the prohibition against polygamy can only be meaningfully understood in its historical context.

[879]     Dr. Witte told us of the "sober arguments" levelled against polygamy in the United States before and during the passage of the anti-polygamy laws in the latter half of the 19^th century. I repeat a portion of that evidence:

And the concern was the exploitation and enslavement of women, the concern about creating rivalry and violence in the household. The concern was the privileging of the rich who participate in marriage at the cost of fit men who did not have the capacity to enter marriage because they didn't have the capital. There was concern of the exploitation of women in the household itself, the favouring of some and the diminishment of others. There was concern also about children, children being raised in those households being subject to the discord, to the violence, to the favouritism, the incapacity of those children to learn the habits of citizenship that they needed. The concern especially of coercion of young, of vulnerable children, especially young girls, into relationships. All that rhetoric is consistent with the rhetoric of the tradition indeed going back to the 3rd and 4th century church fathers' writings repeated ... by various Enlightenment philosophers and common law jurists. That kind of language is at the disposal of Congress and used by Congress, amongst other language, to describe why it was thought expedient to pass new laws on this subject.

[Transcript, 10 January 2011, p. 55, l. 31 to p. 56, l. 9]

[880]     These "sober arguments" were being expressed at the time Parliament was considering the Canadian version of the polygamy prohibition. As Dr. Witte noted, these arguments reflected a long-standing recognition, in the Western legal and philosophical tradition, of the harms associated with polygamy. I conclude that these concerns were similarly held in Canada and can be seen to have prompted, in part, our legislation.

[881]     I conclude that s. 293 was, and indeed still is, intended to address the harms viewed as arising from polygamy; harms to women, to children, to society and, importantly, to the institution of monogamous marriage.

[882]     I would expand upon an important point with respect to the purpose of s. 293. In my view, it is directed in part at protecting the institution of monogamous marriage. At first blush, this characterization of its object seems to undercut the thesis that s. 293 is directed at addressing harm - the harm viewed as arising from the institution of polygamy.

[883]     I say this in response: the harms said to be associated with polygamy directly threaten the benefits felt to be associated with the institution of monogamous marriage ? felt to be so associated since the advent of socially imposed universal monogamy in Greco-Roman society.

[884]     As I said above, the prevailing view through the millennia in the West has been that exclusive and enduring monogamous marriage is the best way to ensure paternal certainty and joint parental investment in children. It best ensures that men and women are treated with equal dignity and respect, and that husbands and wives (or same sex couples), and parents and children, provide each other with mutual support, protection and edification through their lifetimes.

[885]     The negative and the positive aspects of the polygamy prohibition are two sides of the same coin. The prohibition abates the harms to individuals and society associated with polygamy, and it protects and preserves monogamous marriage, the institution believed to advance the values threatened by polygamy.

[886]     The Supreme Court of Canada revisited the nature and extent of Parliament’s criminal law power in Reference re Assisted Human Reproduction Act, 2010 SCC 61.

[887]     Four of the nine Justices (LeBel, Deschamps, Abella and Rothstein JJ.) said this of the criminal law power (at para. 232):

In our view, therefore, it is not enough to identify a public purpose that would have justified Parliament’s action. Indeed, it might be hoped that Parliament does not act unless there is a public purpose that justifies its doing so. Where its action is grounded in the criminal law, the public purpose must involve suppressing an evil or safeguarding a threatened interest.

[888]     In the case of s. 293, Parliament sought to suppress the evil reasonably apprehended to be associated with the practice of polygamy and in doing so it was, and is, safeguarding a threatened interest ? the institution of monogamous marriage.

[889]     This aspect of polygamy prohibition was discussed in the American context in Hardy, Mormon Polygamy in Mexico and Canada at 189-190:

Something of a parallel existed in the United States. After anti-polygamy legislation was passed by the Congress, many Mormons were outraged at what they considered to be the hypocrisy, the double standard, of those who made and enforced such laws against them. To the Mormon, vast numbers of homeless children, widespread prostitution, adultery and sexual deceit constituted a standing rebuke of those who condemned the Mormon marriage system which, the Saints alleged, had largely eliminated such evils.

What Mormons seemed unable to grasp fully, although it was explained on several occasions, was that it was not the sexual derelictions of individuals with which the law was concerned so much as with preserving the form of the monogamous home. The purpose of the laws, as explained by legislators and judges alike, was to expunge the "semblance" of a competing and threatening order of American home life. This is why, in the face of Mormon consternation, convictions for plural marriage were allowed even when no sexual relations between spouses existed. The intent was to obviate, in the words of the Utah Commission, "the assault made by the Mormon Church upon the most cherished institution of our civilization - the monogamic system.

[890]     Hardy notes the Canadian congruence with this American view, as the polygamy prohibition in this country similarly made provision for convictions with or without evidence of sexual relations between the parties (at 197).

[891]     We also see some reference to polygamy’s threat to the institution of monogamous marriage in the American jurisprudence of the time.

[892]     Recall the Reynolds decision, where the United States Supreme Court said (at 165):

Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.

[893]     In United States v. Musser, 4 Utah 153, 7 P. 389 (1885), the Supreme Court of Utah considered the meaning of the then newly created offence of "unlawful cohabitation". After observing that the law was not aimed at adultery since it required cohabitation with more than one woman, the Court noted that "it appears plain that the intention was to protect the monogamous marriage by prohibiting all other marriage, either in form or in appearance only, whether evidenced by a ceremony, or by conduct and circumstances alone" (at 391).

[894]     The Court added (at 391):

We may assume that the authors of this law had in mind the institution of marriage, because they expressly declared that any man who, having a wife, marries another, is guilty of a crime; and that any male person who cohabits with more than one woman is guilty of unlawful cohabitation. They had in view the evil effects of such practices. The end of the law was the protection of the monogamous marriage; and the suppression of polygamy and unlawful cohabitation were but means to that end.  [Emphasis added.]

[895]     I conclude that similar sentiments were also at work in Canada in the lead up to the introduction of s. 293.

[896]     While there is little doubt that the arrival of Mormons from the United States was a galvanizing influence on many of those who supported the introduction of the provision and its earlier iterations, it follows from what I have just said that I do not consider the legislation to have been the product of religious animus.

[897]     It is true that Parliamentarians expressed their objections to polygamy during the House of Commons and Senate debates regarding Bill 65 with strong moral condemnation. However, overwhelmingly, it was directed towards the practice of polygamy, not Mormon religious belief.

[898]     For example, the Hon. Mr. Power said in the Senate:

I am glad that the Government have undertaken to deal with the practice of polygamy. It is understood that some Mormons have settled in our North-West Territories, and the probabilities are that if the Government and Parliament of Canada did not take some steps to indicate that they did not propose to allow those people to continue to indulge in their nefarious practice in this country, we might ere long have a wholesale exodus from the United States, where they are now being followed up energetically by the law into this country.

[Debates of the Senate, 6th Parl., 4th Sess., (25 April 1890), at 584]

[899]     The Hon. Mr. Macdonald said:

Mormons who come into this country and continue to live as Mormons, and are convicted of the practice are punished accordingly.

[Debates of the Senate, 6th Parl., 4th Sess., (25 April 1890), at 585]

[900]     I also observe that while the debate surrounding the polygamy law focussed predominantly on Mormons, some Parliamentarians were careful to not to make that link exclusive. In the House of Commons, for example, the Hon. Mr. Mulock, in arguing for a more stringent penalty than was proposed, said:

The present provision, which leaves it in the option of the judge to merely impose a nominal fine, is an illusory punishment and will develop the hope in the breasts of the Mormons or others who would seek to evade the law that they may escape with a fine; [Emphasis added.]

[Debates of the House of Common, 6th Parl., 4th Sess., (10 April 1890), at 3177]

[901]     In the Senate, the Hon. Mr. Abbott stated:

Of course, the Bill is not directed against any particular religion or sect or Mormon more than anybody else; it is directed against polygamists. In so far as Mormons are polygamists of course it attaches to them.

[Debates of the Senate, 6th Parl., 4th Sess., (25 April 1890), at 585]

[902]     The introductory words of the original iteration of the law, s. 5 of the Act respecting Offences relating to the Law of Marriage, made this clear:

Everyone who practices, or, by the rites, ceremonies, forms, rules or customs of any denomination, sect or society, religious or secular, or by any form of contract, or by mere mutual consent, or by any other method whatsoever, ... [Emphasis added.]

[903]     Polygamy was not prohibited because it was a religious belief of the early Mormon settlers. It was the practice of polygamy and the harms with which it was associated that concerned Canadian lawmakers.

[904]     I find that the prohibition was prompted by largely secular concerns with the perceived harms associated with the practice of polygamy to women, children, society and the institution of monogamous marriage. As I have discussed, socially imposed universal monogamy, while embraced by Christianity, had its roots in secular Greco-Roman society.

B.              Interpretation of s. 293

1.               Positions of the Parties

[905]     Each party begins its submissions on the interpretation of s. 293 by citing the modern approach to statutory interpretation: the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. From this point of consensus, however, they offer divergent interpretations of the provision.

[906]     The Amicus puts forth the most expansive interpretation. His position, simply put, is that s. 293 criminalizes all conjugality other than monogamy, regardless of gender arrangement, the manner in which the union was formed or its benefit to the participants. Section 293 also criminalizes all participants in the union, alleged wrongdoers and victims alike.

[907]     The Amicus submits that for the purposes of s. 293(1)(a)(i), “polygamy” encompasses polygyny, polyandry and same-sex polygamy.

[908]     “Polygamy” is a gender neutral term and was so, according to dictionaries from the period, in 1890 when the prohibition was first enacted.

[909]     Moreover, the Oxford English Dictionary, 3rd ed. [OED] indicates that the terms “polygyny” and “polyandry” were in usage by at least 1780, more than a century earlier. The OED defines both as forms of polygamy, significant given that the polygamy prohibition has always made it an offence to enter into “any form of polygamy”. The Amicus submits that Parliament must be taken to have known of the existence and definitions of these terms and to have chosen the one that best expressed its intended meaning. Of note, that choice was maintained in subsequent revisions of the provision.

[910]     The Amicus draws further support for a gender neutral interpretation of polygamy from both the bigamy offence, which was amended in the same bill that first introduced the polygamy prohibition, and the conjugal union offence in s. 293(1)(a)(ii).

[911]     The amended bigamy provision, which became s. 4 of An Act respecting Offences relating to the Law of Marriage, read as follows:

Every one who, being married, marries any other person during the life of the former husband or wife, whether the second marriage takes place in Canada or elsewhere, and every male person who, in Canada, simultaneously, or on the same day, marries more than one woman, is guilty of felony, and liable to seven years’ imprisonment.  [Emphasis added.]

Plainly it was not Parliament’s intention to restrict s. 293 to polygyny or else it would have drawn the distinction it drew here.

[912]     The conjugal union offence, both in 1890 and currently, prohibits being in “any kind of conjugal union with more than one person at the same time”. Again, the Amicus submits, the underlined words are explicitly gender neutral and reflect Parliament’s intention to capture all forms of polygamous conjugality, regardless of gender arrangement.

[913]     In arguing against an interpretation that would restrict polygamy to polygyny, the Amicus stresses the words “any form of”, which he says clearly do not refer to particular religious or cultural traditions of polygamy as some other reference participants contend. This is evident, he says, from the breadth of the prohibition as originally enacted:

5.         Every one who practises, or, by the rites, ceremonies, forms, rules or customs of any denomination, sect or society, religious or secular, or by any form of contract, or by mere mutual consent, or by any other method whatsoever, and whether in a manner recognized by law as a binding form of marriage or not, agrees or consents to practice or enter into

(a)        Any form of polygamy; or -

(b)        Any kind of conjugal union with more than one person at the same time; or -

(c)        What among the persons commonly called Mormons is known as spiritual or plural marriage; or -

(d)        Who lives, cohabits, or agrees or consents to live or cohabit, in any kind of conjugal union with a person who is married to another, or with a person who lives or cohabits with another or others in any kind of conjugal union.

[914]     As the underlined passage precedes “any form of”, it would be redundant for the phrase to refer to different religious or cultural traditions of polygamy.

[915]     The Amicus says that the presumption of statutory interpretation, codified in s. 10 of the Interpretation Act, R.S.C. 1985, c. I-21, that words are to be given their current, as opposed to historical, meaning further buttresses his interpretation. “Polygamy” should be interpreted in a manner consistent with current social realities, and be taken to encompass any form of committed, multi-partner relationship.

[916]     With respect to s. 293(1)(a)(ii), the conjugal union offence, the Amicus submits (at paras. 140 - 141):

In the Amicus’ submission, “conjugal union” means a “marriage-like relationship” or a “conjugal relationship”. It is a broad term, encompassing formal marriages but also including what are sometimes called “common law relationships”. The word “conjugal” describes the substance of a relationship, rather than its legal form: it speaks to a relationship between persons that is committed, interdependent and of some permanence. Within the broad category of “conjugal unions” or “conjugal relationships”, the law recognizes at least marriage and common law relationships; within the context of immigration, Canadian law also recognizes a third relationship between “conjugal partners”.

In the Amicus’ submission, s. 293(1)(a)(ii) prohibits all such relationships when pursued by more than two people.

[917]     He argues that whether a multi-partner relationship is conjugal for the purposes of s. 293(1)(a)(i) can be determined by reference to factors developed in family law. He proposes the test from Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), cited in M. v. H., [1999] 2 S.C.R. 3 (at para. 59):

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.

[918]     In arguing for a broad interpretation of the conjugal union offence, the Amicus raises the following points.

[919]     First, the ordinary meaning of “conjugal union” is “conjugal relationship”, as reflected in the synonymous use of those terms by many courts, tribunals and commentators. A few examples follow:

a)    The Immigration and Refugee Protection Regulations, SOR/2002-227, state in s. 2 that “‘conjugal partner’ means, in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year”. In determining whether that test had been met in Mbollo v. Canada (Minister of Citizenship and Immigration), 2009 FC 1267, Boivin J. used “conjugal relationship” and “conjugal union” interchangeably:

[24]      An appeal before a panel is a hearing de novo. Accordingly, the applicant and his spouse had to provide sufficient reliable evidence showing that their conjugal relationship was genuine and that it was not entered into primarily for the purpose of acquiring a status under the Act (Froment v. Canada (Minister of Citizenship and Immigration), 2006 FC 1002, 299 F.T.R. 70 at para. 19, citing Sanichara at para. 8; Mohamed v. Canada (Minister of Citizenship and Immigration), 2006 FC 696, 296 F.T.R. 73 at para. 40; Morris v. Canada (Minister of Citizenship and Immigration), 2005 FC 369, 147 A.C.W.S. (3d) 489 at para. 5).

[25]      The consideration of conjugal partner status under section 2 of the Regulations is an integral part of interpreting section 4 of the Regulations. If it is not established on a balance of probabilities that a conjugal relationship exists, the relationship is not genuine, and it may be inferred that it was entered into primarily to obtain a status or privilege under the Act.

[26]      The panel based its analysis on the non-exhaustive factors for identifying a conjugal relationship as established in M. v. H., [1999] 2 S.C.R. 3, 238 N.R. 179. The weight to be assigned to the different factors varies, and a flexible method must be adopted in determining whether a conjugal union exists (Cai v. Canada (Minister of Citizenship and Immigration), 2007 FC 816, 159 A.C.W.S. (3d) 428 at  para. 12).

[Amicus’ emphasis.]

b)    Statistics Canada often uses the term “conjugal union” synonymously with “conjugal relationship”, encompassing both marriage and common law unions; for instance, in Nancy Zukewich and Melissa Cooke-Reynolds, “Days of our lives: time use and transitions over the life courses” in Transitions to Union Formation, 1998, No. 2 (Statistics Canada: 2003) at 89:

This study of union formation compares getting married with entering a common-law union. In an attempt to capture the respondent’s first transition into a conjugal union, the population was restricted to those aged 20 to 34. This was based on average age at first marriage and the fact that people tend to enter their first common-law relationship at slightly younger ages than when they marry (Statistics Canada 2000). However, married people in this age range are somewhat more likely than cohabiting people to be in their first union.

[Amicus’ emphasis.]

[920]     Second, the Amicus contends that the context of the phrase “conjugal union” in s. 293 supports his interpretation.

[921]     The conjugal union offence speaks broadly of “any kind of conjugal union with more than one person at the same time”, and appears aimed at capturing any kind of committed, permanent relationship between three or more people. For greater clarity, Parliament confirmed it was criminalizing every such relationship “whether or not ... by law recognized as a binding form of marriage”.

[922]     Further, the opening words of subsection (a) criminalize anyone who “practises or enters into or in any manner agrees or consents to practise or enter into” a conjugal union. Again, this language is exceedingly broad.

[923]     The Amicus points out that “practices”, which is distinguished from “enters into”, relates to an ongoing state of affairs. It is therefore not a requirement that the union be formed in a particular way. “Agrees or consents” encompasses the casual manner in which many common law unions are formed; first  by deciding to cohabit and then by each party consenting to that continuing state of affairs. In this regard, the evidence of Dr. Wu with respect to the present diversity of non-institutionalized acts of commitment warrants regard.

[924]     Thus, the Amicus argues, it is the simple fact that an accused person is in such a relationship that matters, not the manner in which the relationship was formed.

[925]     This point is put beyond doubt by s. 293(2), which provides that “no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or upon the trial of the accused”.

[926]     The Amicus also turns to the legislative record in contending for a broad interpretation of conjugal union. He says that the first iteration of s. 293 (s. 5 of An Act respecting Offences relating to the Law of Marriage) evinces Parliament’s intention to prohibit all conjugal relationships between more than two people, even if they were formed merely by cohabitation and consent. (That provision is set out at para. 863 above.) A number of points drive this submission:

a)    The opening words of the section make clear that liability extends to anyone who “practices” any form of polygamy or multi-partner conjugal union. The significance of this was explained above.

b)    The opening words of the section also refer to alternative methods of entering into a polygamous relationship or multi-party conjugal union, some of which are extremely broad: “... by any form of contract, or by mere mutual consent, or by any other method whatsoever”.

c)     Subsection (d) reveals Parliament’s intention to criminalize multi-party cohabitation where the participants do so in a conjugal union: “who lives, cohabits, or agrees or consents to live or cohabit, in any kind of conjugal union with a person who is married to another, or with a person who lives or cohabits with another or others in any kind of conjugal union”.

d)    Subsection (2) refers to the relationships listed in subsection (1) as “sexual relationships”. Parliament was thus focussing on the intimate nature of the relationships rather than any formalized social status.

[927]     Although the polygamy provision was subsequently revised, as has been noted elsewhere, there is nothing in the legislative record to suggest that the changes were intended to be substantive.

[928]     The French version of s. 293, which refers to “union conjugale”, offers yet additional support for the Amicus’ proposed interpretation. The Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.), uses union conjugale where it uses “conjugal relationship” in English. Similarly, some French translations of judicial authorities use union conjugale where their English counterparts say conjugal relationship: see, for example, M v. H; Bellavance v. Canada, 2004 TCC 5.

[929]     Many of the Interested Persons similarly advocate expansive interpretations of s. 293, including REAL Women, the Christian Legal Fellowship, the Civil Liberties Association and the Polyamory Advocacy Association.

[930]     The two Attorneys General and certain Interested Persons propose more circumscribed interpretations of s. 293.

[931]     The AG Canada submits that properly interpreted, s. 293 prohibits practicing or entering into multiple simultaneous marriages, whether sanctioned by civil, religious or other means. Under this interpretation, the offence is not directed to multi-party unmarried relationships or common law cohabitation; it is, however, directed to both polygyny and polyandry.

[932]     The AG Canada submits that polygamy is, and always has been, an offence linked to marriage. The word, by definition and etymology, means multiple marriages. The offence was first introduced in Canada in a bill to amend An Act respecting Offences relating to the Law of Marriage. Section 293 is found in a part of the Criminal Code entitled “Offences Against Conjugal Rights”; all of the offences found in this part relate to marriage. The limited jurisprudence regarding s. 293 confirms its link to marriage: see, for example, R. v. Labrie, (1891), 7 M.L.R. 211 (Que. Q.B.), R. v. Tolhurst, [1937] O.R. 570 (C.A.), and R. v. Wright (1937), 3 D.L.R. 808.

[933]     The AG Canada’s interpretation finds support in s. 293(1)(b), which uses the language “celebrates, assists or is a party to a rite, ceremony, contract or consent”. Each is a term of art associated with and having a distinct meaning within the context of marriage. Based on the historical and legislative context, subsection (b) must be understood as furthering Parliament’s intention to discourage multiple marriages.

[934]     Importantly, the AG Canada says, an interpretation linking polygamy to multiple marriages is consistent with the evidence that marriage is a foundational public institution with effects extending well beyond the immediate participants. It is consistent, as well, with the evidence of the harms associated with the practice.

[935]     The AG Canada submits that s. 293(1)(a)(i) prohibits the practice of entering into multiple simultaneous marriages that are legally valid under the law where they were celebrated. Given that it is not legally possible to marry multiple people in Canada, this offence should be interpreted as referring to non-residents of Canada who marry their spouses in a foreign country in accordance with its laws and then come to Canada. Upon their arrival in Canada, they are practicing polygamy within the meaning of that subsection.

[936]     The AG Canada describes s. 293(1)(a)(ii) as an anti-circumvention provision intended, in part, to prevent individuals from escaping criminal liability by having their multiple marriages sanctioned only by religious or other means. There are two important aspects to this offence: (a) it is aimed at marriage, not cohabitation; and (b) it captures all non-legally valid multiple marriages, including Mormon celestial marriage.

[937]     The AG Canada argues that a conjugal union is a long-standing legal concept used to describe a marriage, whether valid under civil law, valid only in religious law or existing only in the view of the parties and the communities to which they belong.

[938]     At the time of the first enactment of s. 293, “conjugal union” was commonly defined as “[o]f or pertaining to marriage or to husband and wife in their relation to each other, matrimonial”: OED, 2d ed. Courts have similarly interpreted the conjugal union offence as relating to marriage and requiring more than simple cohabitation: Labrie; Tolhurst. Indeed, even the Amicus’ own family law expert, Dr. Susan Drummond, gave evidence that “[c]ohabitation alone, without some form of intentional act that binds the parties contractually, does not meet the criteria of conjugal union set out in the polygamy section” (at para. 60).

[939]     A conjugal union is legally distinct from a conjugal relationship. One of the key areas of distinction is that the former, like any marriage, is created in a moment by a marriage ceremony or other sanctioning event. A conjugal relationship, in contrast, develops only over time and without a specific moment of creation.

[940]     The AG Canada says it is of note that in 2000, Parliament reviewed all federal statutes that referred to marriage to determine whether they should be revised to include common law partners and relationships. As a result of this exercise, Parliament amended 68 statutes including the Criminal Code, adding a definition of common law partner to s. 2 of the Code:

“common-law partner”, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year;

[941]     Various provisions in the Code were also amended to reflect this change; for instance, s. 215 regarding the duty of persons to provide necessaries of life, was revised to apply to spouses and common-law partners. Section 293, however, remained unchanged, thus undercutting any submission that conjugal union refers to an unmarried relationship.

[942]     As an offence related to marriage, s. 293(1)(a)(ii) includes two important elements. First, a conjugal union, like a marriage, comes into being through a marriage ceremony or other sanctioning event. Second, the participants in the conjugal union, like the participants in a marriage, are bound together in a marital structure or institution.

[943]     The AG Canada emphasizes the importance of both elements. Although some form of sanctioning event is necessary to create a conjugal union, the harms associated with polygamy do not flow from the sanctioning event alone. As a foundational social structure, the institution of marriage wields extraordinary power in organizing relationships between individuals and between individuals and the state.

[944]     The AG Canada takes the position that s. 293 applies to both polygyny and polyandry. Many of his submissions on this point mirror those of the Amicus. The AG Canada adds that it is also reasonable to assume that many of the same harms associated with polygyny will manifest in polyandrous marriages; for instance, divided parental investment in children or the increased likelihood of violence and neglect due to less genetic-relatedness among family members.

[945]     Further, even though the prohibition of polygamy is most solidly founded on harm reduction, it can only achieve this purpose through the enforcement of a definable standard. The public has an interest in coherent and universal legal rules restricting individuals from engaging in all types of multiple marriages. To permit some members to engage in an activity that is prohibited for others may serve to weaken the moral standards that are addressed by the law.

[946]     The AG Canada says that the bigamy and polygamy provisions in the Criminal Code are complementary, in that both target multiple marriages. The bigamy provision targets only multiple marriages entered into through the civil process. The polygamy provision targets marriages entered into in countries where polygamy is legal and the participants subsequently come to Canada; it also targets marriages where the parties have circumvented civil marriage requirements. Together, the two provisions ensure that all forms of multiple marriage are prohibited in Canada and that there are no loopholes which would permit individuals to circumvent Parliament’s intention.

[947]     The FLDS does not agree with some aspects of the AG Canada’s position but proposes an interpretation that has similarities.

[948]     The FLDS disputes the AG Canada’s submission that the polygamy offence refers to polygamous marriages that are valid in a foreign jurisdiction. Such a scenario, it argues, is already prohibited by s. 290, the anti-bigamy provision. The FLDS also challenges the AG Canada’s position that a conjugal union requires a sanctioning event.

[949]     However, the FLDS says that the few authorities that have considered s. 293 have held that a conjugal union requires more than mere cohabitation between the parties, and have described the requisite nature of the relationship as being “under the guise of marriage” (Tolhurst) or as a “form of contract between the parties, which they might suppose to be binding on them” (Labrie).

[950]     It follows, the FLDS thus submits, that the offence is made out upon the making of an agreement by more than two persons to treat themselves as bound together in a marriage-like relationship. The accused must have agreed to treat this agreement as binding upon his or her conscience for some period of time.

[951]     Since criminal laws require precision in order that an accused may know the parameters of prohibited conduct, the offence created by s. 293 cannot be defined solely by reference to the indicia of a marriage-like relationship as described in the authorities. The FLDS would define the offence in this way (at paras. 33 - 34):

It is the submission of the FLDS that the actus reus of the offence created in section 293 is the making of the agreement between more than two people to form or engage in a relationship having some or all of the indicia of marriage, excluding the fact or intent to engage in sexual relations, and to treat that relationship as binding on their conscience and enduring for some period of time. The mens rea is the specific intent to make the agreement. The question of whether this agreement is sanctioned by foreign law (polygamy, as defined by Canada) or undertaken in Canada without sanction of law (conjugal union) is irrelevant.

Section 293 therefore creates, uniquely, a crime of status. It is not an offence to undertake individually or collectively any of the indicia of marriage such as living together, having sexual relations, bearing children, sharing expenses or supporting one another. The offence is only committed if persons performing some, or all of these indicia of marriage have also agreed to treat their relationship as binding on their conscience and enduring for some period of time. The sisters who live together and support one another in every way, having agreed to treat their relationship as enduring are captured by the prohibition in the same way that members of the FLDS, having entered a celestial marriage are captured.

[952]     Also like the AG Canada, the FLDS submits that the offence is not limited to polygyny but applies to polygamy in all its forms.

[953]     The AGBC proposes a different interpretation of s. 293. He contends that the provision targets multi-partner relationships with the trappings of duplicative marriage (at para. 100):

Setting aside for the time being the question of whether “polygamy” or “conjugal union with more than one person” includes both polygyny and polyandry (discussed under “overbreadth” in the final section of this Part), it is apparent that a multi-partner relationship does not become criminal unless it has the trappings of duplicative marriage. What constitutes “duplicative marriage” need not be exhaustively defined in advance, but it means at least that multi-party conjugality would attract the criminal prohibition when it is or purports to be a marriage, including when it is or purports to be a pairing sanctioned by some authority and binding on its participants. In this formulation, “authority” would be some mechanism of influence, usually religious, legal, or cultural, that imposes some external consequences on decisions to enter into or remain in the relationship. This is the “core” polygamy that, on the evidence, is the overwhelmingly prevalent, and most harmful, kind.

[954]     The AGBC takes this concept of duplicative marriage from State of Utah v. Holm, where the Supreme Court of Utah held that “the bigamy statute was intended to criminalize both attempts to gain legal recognition of duplicative marital relationships and attempts to form duplicative marital relationships that are not legally recognized. This court has previously recognized that the legislative purpose of the bigamy statute was to prevent ‘all the indicia of marriage repeated more than once’” (at para. 26).

[955]     The AGBC says his focus on the core polygamy of duplicative marriage is consistent with the context of the section as a whole. Subsection 293(1)(b) refers to “a rite, ceremony, contract or consent”, suggesting that Parliament’s concern was with relationships with a certain degree of formality or commitment. Moreover, the phrase “whether or not it is by law recognized as a binding form of marriage” suggests that its main application was thought to be with respect to purportedly binding forms of marriage, whatever their legal status.

[956]     The AGBC further submits (at paras. 105 - 106):

The three original provisions of the [1890] prohibition addressed themselves to three types of criminal conjugality: Mormon plural marriage; “any form of polygamy”, and a conjugal union among more than two persons (there was a fourth category of “cohabiting” in a conjugal union, which was removed in 1954 presumably because it was completely redundant with the now subsection 293((1)(a)(ii)).

It seems clear from the history and context that the overlap among the provisions was deliberate. Subsection 293(1)(a)(ii), which has since 1890 forbidden a “conjugal union” with more than one person, is a reiteration and expansion of the principal prohibition that was designed and serves as an anti-circumvention measure. It refers to a polygamous marriage-like union even if it cannot be proven to have been formalized through recognized ceremony or celebration that would have made it either a “form of polygamy” under subsection 11(5)(a) [now subsection 293(1)(a)(i) or “what among the persons commonly called Mormons is known as spiritual or plural marriage” under then subsection 11(5)(c).

[957]     Each of the forms of polygamy of concern to the government of the day (Mormon, Indian and Muslim) was a form of multiple marriage in the sense of being a relationship recognized as originating in some sort of purportedly binding authority. Further, the concerns apparent from the historical record are the protection of women and children and the preservation of the authority and cohesiveness of the state. These are concerns that relate to polygamy at the point that it becomes institutional in some measure.

[958]     The AGBC takes the position that it is unnecessary for the Court to decide whether s. 293 applies to polyamory, polyandry and multi-partner same-sex unions. He submits (at para. 120):

The Attorney’s position is that the question of the inclusion of these non-polygynous polygamous relationships (which the Attorney refers to collectively as “polyandry” for convenience) need only be answered if this Court concludes, on present evidence, that polyandry is prima facie included in section 293, and that inclusion would render it unconstitutionally overbroad, and that the problem could not be resolved in a number of ways short of a finding of invalidity.

[959]     The AGBC argues that each of these propositions may be doubted, and the question left for another day:

a)    For a number of reasons, it is open to the Court to interpret “polygamy” as “polygyny”:

i.       First, all indications from the legislative record and surrounding historical context are that “polygamy” was understood and discussed in 1890 purely with reference to polygyny. It is also generally understood and practiced that way today.

ii.      Second, the Court is not bound by the original definition of the term, as the interpretation of words in a statute can evolve over time as the norms and mores of society change; the evolving definition of marriage is an apt example. It would be in keeping with rules of statutory interpretation to read down “polygamy” in s. 293 to mean “polygyny”, particularly if to do otherwise would render the section unconstitutional.

b)    Even if polyandry and same-sex multi-partner conjugality were prohibited by s. 293, it is not certain this would render the provision unconstitutional. It would be open to this or another court to decide that polyandry also carries constitutionally significant harms; that broader inclusion confirms a defensible uniform moral stand; and, that there may be strong equality reasons to support the application of the polygamy ban regardless of the gender of the conjugal partners.

c)     If an inclusive definition would nevertheless be problematic, the Court would be entitled to read in exceptions.

[960]     In explaining why the need to address the matter may never arise, the AGBC offers some further insight into what conduct he considers s. 293 to capture (at para. 126):

Indeed, it may be doubted that such a day may even come. The evidence indicates no significant religious, cultural or legal tradition, anywhere in the world, that includes among its tenets polyandrous or same-sex multi-partner unions. There are five affidavits from polyandrous polyamorists in Canada, but it may be doubted whether any of them is in a polygamous marriage or conjugal union within the prima facie scope of section 293 - none of the relationships has been of long-standing (it appears the longest has endured three years), none involves a sanctioning authority or external influence, and the parties appear to consider themselves bound only as long as they choose. [Emphasis added.]

[961]     Yet another interpretation of s. 293 is proposed by West Coast LEAF and supported by the BCTF. It submits that s. 293 should be read down to apply to exploitative polygamy only. Read down in this way, the provision applies only to the exploiter, not the exploited. It also does not capture polyamory, as such relationships, at least as defined by the Polyamory Advocacy Association, are based on equality and self-realization.

[962]     Reading down is a tool of constitutional interpretation that relies on the principle of constitutionality for its operation.

[963]     The principle, or presumption, of constitutionality, in turn, is a rule of construction that applies to all constitutional analyses. It holds that where “legislation is amenable to two interpretations, a court should choose the interpretation that upholds the legislation as constitutional. Thus, courts must presume that Parliament intended to enact constitutional legislation and strive, where possible, to give effect to this intention”: R. v. Mills, [1999] 3 S.C.R. 668 (at para. 56).

[964]     Citing Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, West Coast LEAF submits that construing terms by reference to the evidence and submissions is a common and accepted function of courts in interpreting criminal law. In that case, for instance, McLachlin C.J.C. turned to the evidence in determining the meaning of “reasonable in the circumstances” in the context of s. 43 of the Criminal Code, which permits corrective measures when disciplining children.

[965]     West Coast LEAF submits that in the present case, the record is replete with evidence regarding the harms associated with polygamy. Overwhelmingly, that evidence relates to exploitative polygyny.

[966]     Accordingly, s. 293 is reasonably open to the interpretation that it applies to polygamy insofar as it exploits women and girls. This interpretation fulfils the equality rights of women and girls in exploitative polygamous relationships while limiting the potential infringement of the Charter rights of polygamists.

[967]     West Coast LEAF says that the determination as to whether a particular polygamous relationship is exploitative depends on an assessment of the totality of the circumstances presented. While such an exercise may defy bright line distinctions, exploitation is a concept known to the criminal law and is an express element of a number of a offences, among them s. 153 (sexual exploitation) and s. 163 (obscenity).

[968]     West Coast LEAF offers a non-exhaustive list of factors, the existence of one, some or all of which may tend to establish exploitative polygamy, including: (a) whether a community practices polygyny and not polyandry; (b) whether there is a power differential between a husband and wife based on a significant age differential; (c) whether the female is a “young person” as defined in the Criminal Code; and (d) whether the marriage structure in question concentrates household power in the central male figure in terms of decision-making, sexual control and economic control.

2.               Conclusion on Interpretation of s. 293

[969]     The modern rule of statutory interpretation bears repetition here: the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27).

[970]     To this common law rule I would add the following statutory directions from the federal Interpretation Act:

10.       The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.

...

12.       Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

[971]     Determining the scope of s. 293 is a threshold inquiry on this reference. As McLachlin C.J.C. said in Sharpe (at para. 32):

Until we know what the law catches, we cannot say whether it catches too much.

[972]     As summarized in detail above, the parties have addressed a number of alternative versions as to what this law “catches”. Here, I will identify the spectrum of interpretations to assist the discussion. The alternatives move from the broadest to the narrowest interpretation.

[973]     At the far end of inclusiveness is the interpretation advanced by the Amicus: s. 293 criminalizes all conjugality other than monogamy, regardless of gender arrangement and the manner in which the union was formed. It criminalizes all participants in the union.

[974]     Moving closer to the center, the AG Canada submits that s. 293 prohibits practicing or entering into multiple, simultaneous marriages, whether sanctioned by civil, religious or other means. It is not directed at multi-party, unmarried relationships or to common law cohabitation. It captures both polygyny and polyandry.

[975]     Next, we have the position advanced by the AGBC. The prohibition is directed against duplicative marriage in polygynous relationships. It is unnecessary to decide today whether s. 293 applies to polyamory, polyandry or multi-partner, same-sex unions.

[976]     Finally, at the narrow extreme of the spectrum, West Coast LEAF would read down the section to apply to exploitative polygamy only. It applies to the exploiter, not the exploited. It does not capture polyamorous relationships, at least as defined by the Polyamory Advocacy Association.

[977]     I have concluded that the AG Canada’s submission, with some qualifications, is closest to the mark in this contest.

[978]     Both the AGBC and West Coast LEAF (and the Interested Persons who advance their own interpretations building on these), in a pre-emptive effort to address concerns with overbreadth, invite the Court to read down or read in limitations to the scope of the section. It is the case, as McLachlin C.J.C. said in Sharpe (at paras. 32-33):

While the Crown concedes that s. 163.1(4) limits freedom of expression, this does not eliminate the need to consider the nature and scope of the infringement in determining whether or not it is justified. Until we know what the law catches, we cannot say whether it catches too much. This Court has consistently approached claims of overbreadth on this basis. It is not enough to accept the allegations of the parties as to what the law prohibits. The law must be construed, and interpretations that may minimize the alleged overbreadth must be explored: see Keegstra, supra, Butler, supra, and Mills, supra. So we must begin by asking what s. 163.1(4) truly catches as distinguished from some of the broader interpretations alleged by the respondent and some of the interveners in support. The interpretation of the section is a necessary pre-condition to the determination of constitutionality, although it is understood, of course, that courts in future cases may refine the analysis in light of the facts and considerations that emerge with experience.

Much has been written about the interpretation of legislation (see, e.g., R. Sullivan, Statutory Interpretation (1997); R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994); P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000)). However, E. A. Driedger in Construction of Statutes (2nd ed. 1983) best captures the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be [page75] founded on the wording of the legislation alone. At p. 87, Driedger states: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." Recent cases which have cited the above passage with approval include: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; R. v. Hydro-Québec, [1997] 3 S.C.R. 213, at para. 144; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411, at para. 30; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550, at para. 22; Friesen v. Canada, [1995] 3 S.C.R. 103, at para. 10. Supplementing this approach is the presumption that Parliament intended to enact legislation in conformity with the Charter: see Sullivan, Driedger on the Construction of Statutes, supra, at pp. 322-27. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078; R. v. Swain, [1991] 1 S.C.R. 933, at p. 1010; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 660; R. v. Lucas, [1998] 1 S.C.R. 439, at para. 66.

[979]     In Canadian Foundation for Children, Youth and the Law, McLachlin C.J.C. did turn to the evidence in determining the meaning of “reasonable in the circumstances”. But there, the words were inherently ambiguous or lacking in content. They required a purposive construction to give them meaning.

[980]     Here, the words used by Parliament, including “every one”, “any form of polygamy”, “any kind of conjugal union” are unambiguous in their effort to include “all”. As Sharpe itself points out, even with an eye to interpreting words in a Charter-compliant manner, the breadth of some words cannot be ignored. In Sharpe, this was confirmed by the fact that even proceeding as the Court directed itself, in the result the proper interpretation of the child pornography provision captured two categories of material that raised little or no risk of harm to children.

[981]     A number of further considerations prompt my conclusion that one must ascribe to the phrases I have highlighted their ordinary meaning.

[982]     As I have concluded from the object of the Act and the intention of Parliament, s. 293 was intended to preserve monogamous marriage from the threat of polygamy and the harms believed to be associated with it. It is the case that the threat to that institution in 1890 (and indeed today) overwhelmingly takes the form of polygyny, but the focus was, and is, the preservation of monogamous marriage, and the protection of individuals and society from the harms associated with polygamy. The words chosen are intended to address the perceived threat in all of its forms.

[983]     From the historical record, it is clear that at the time of the original legislation, there was a well-grounded fear in the United States and Canada that the law against polygamy would be difficult to enforce and easily circumvented by imaginative polygamists. Recall that the law in Canada was prompted in part by a concern that the bigamy prohibition was not sufficiently broad to capture Mormon plural marriage. And remember Stenhouse’s ruminations in 1889 about the bachelor “...duly wedded to both ladies at the same moment, neither of the wives preceding the other” (McCue, “Anthony Maitland Stenhouse” at 120).

[984]     Parliament was intent on leaving no loophole. In this regard, I underline the prohibition against “any kind of conjugal union with more than one person at the same time”. I agree with the AG Canada that this was an anti-circumvention measure, a bit of a belt and suspenders approach to drafting the essential prohibition of any form of polygamy. This conclusion reflects my view, which I will develop below, that s. 293(1)(a)(ii) does not add much, if anything, to the prohibition in s. 293(1)(a)(i). In this regard, I disagree with the Amicus’ submission that this subsection extends to conjugal relationships or common law cohabitation as those terms have been given modern meaning.

[985]     Turning to the scheme of the Act, the Amicus convincingly argues that where Parliament intended to depart from a gender neutral wording, it did so expressly. This is evidenced by the introduction of the amendments to the bigamy provision at the time of the introduction of the polygamy prohibition (see para. 911 above).

[986]     The AG Canada’s submission on the scope of s. 293 then proceeds to suggest that it is directed at prohibiting multiple, simultaneous marriages or in the AGBC’s version “duplicative marriages”. This position is to be contrasted with that of the Amicus and his allies that s. 293 captures all non-monogamous conjugal relationships.

[987]     I agree with the AG Canada and the AGBC that the section does not; that its focus is multiple marriages, that is, pair-bonding relationships sanctioned by civil, religious or other means.

[988]     Section 293 contains two principal prohibitions: one against all forms of “polygamy” and the other against any kind of “conjugal union” with more than one person at the same time.

[989]     Both “polygamy” and “conjugal union” are concerned with marriage.

[990]     The OED, 2nd ed., defines polygamy as involving multiple marriages:

Marriage with several, or more than one, at once; plurality of spouses; the practice or custom according to which one man has several wives (distinctively called polygyny), or one woman several husbands (polyandry), at the same time. Most commonly used of the former.

[991]     The etymology of the word, as also set out in the OED, indicates that the term has always had this meaning: “Gr. ?????a???, f. ?????a??? often married, polygamous; f. ????, POLY + ?a??? marriage”.

[992]     In my view, the concept of “conjugal union” in s. 293 is intended to capture a union which is a marriage. That is made plain by the closing words of ss. 1(a), “whether or not it is by law recognized as a binding form of marriage”. It is also made plain by dictionary meanings of the two words.

[993]     “Conjugal”, according to the OED, means “of or relating to marriage, matrimonial”. “Union”, in turn, is defined as: “5. The joining of one person to another in matrimony; an instance or occasion of this, a marriage.”

[994]     Black’s Law Dictionary, 9th ed., similarly defines “conjugal” as “of or belonging to marriage or the married state.” The entry for “conjugal union” simply reads “See MARRIAGE (1).”

[995]     That takes us to the concept of “marriage”. It is not defined in the Criminal Code. It was famously defined by Lord Penzance in Hyde v. Hyde (1866) L.R. 1. P.&D. 130 at 133 as: “...the voluntary union for life of one man and one woman to the exclusion of all others.”

[996]     That definition has, of course, been overtaken by the recognition of same-sex marriage in Canada.

[997]     Dr. Henrich, in his report (at 7, fn. 3), provides us with the anthropological meaning of “marriage”. It is a description that I find to be quite comprehensive, though I do not suggest it provides a strictly legal definition:

A marriage is a long-term pair-bond between two people that is recognized and sanctioned by the couple’s community. Being married comes with economic, social, and sexual expectations, prescriptions and prohibitions (norms) for both parties, who are accordingly judged - formally or informally - by the community. Marriage may or may not be sanctioned by formal laws, and marriage certainly existed long before formal laws or even writing. Public rituals usually mark the commencement of a marriage. “Cohabitation”, a term I use later and distinguish from marriage, does not carry the set of shared expectations, prohibitions, and prescriptions, as judged by a community, that marriage does. The key to understanding marriage is recognizing the role of a community in defining, sanctioning, and enforcing it.”

[998]     What I stress here is Dr. Henrich’s view that “the key to understanding marriage is recognizing the role of a community in defining, sanctioning and enforcing it”, and the fact that he distinguishes “marriage” from mere “cohabitation”.

[999]     Pursuing this point, I have regard to the scheme of the Act. Section 293, from its first iteration, has been viewed as creating an offence relating to the law of marriage. Today, it is in the part of the Criminal Code dedicated to offences relating to marriage under the heading, “Offences Against Conjugal Rights”.

[1000]  A sanctioning of some formality is clearly contemplated by s. 293; perhaps less expressly in ss. (1)(a) with the language “practices or enters into or in any manner agrees or consents to practice or enter into”, but expressly so in ss. (1)(b) which talks of “a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in sub-paragraph (a)(i) or (ii)”.

[1001]  Scant jurisprudence has been decided under this provision. The few cases include:

a)         R. v. Labrie (1891), 7 M.L.R. 211 (Que. Q.B.)

b)         R. v. Liston (1893, unreported), cited in W.E. Raney “Bigamy and Divorce” (1898) 34 Can L.J. 545

c)          R. v. Bear’s Shin Bone (1899), 3 C.C.C. 329, 4 Terr. L.R. 173

d)         R. v. Harris (1906), 11 C.C.C. 254 (Que. C.S.P.)

e)         Dionne v. Pepin (1934), 72 Que. S.C. 393

f)           R. v. Trudeau, [1935] 2 D.L.R. 786 (B.R. Que.)

g)         R .v. Tolhurst, [1937] O.R. 570 (Ont. C.A.)

[1002]  However, a number of these authorities support this conclusion regarding marriage.

[1003]  In Labrie, the Quebec Court of Appeal (per Dorion C.J.) quashed a conviction under the polygamy section, based on the Crown’s submission that “the law applied to every and anybody who, then married, cohabited, or agreed or consented to do so, with another married person...”. It was held that (at 213):

It was apparent from the statute that there must be some form of contract between the parties, which they might suppose to be binding on them, but which the law was intended to prohibit.

[1004]  Moreover, the requirement for a marriage consistent with a First Nations custom was met in Bear’s Shin Bone.

[1005]  Finally, we have Tolhurst, a decision of the Ontario Court of Appeal. From the perspective of stare decisis, it may not be strictly binding on me but I am interpreting a federal statute and consistency across the provinces is to be preferred. The decision carries some persuasive authority. In Tolhurst, it was found that (at 320):

James Tolhurst's wife and May Wright's husband were still living, and that James Tolhurst and May Wright were living together as man and wife, and had four children born to them who were registered in the register of vital statistics at Hamilton as their children.

[1006]  The issue was characterized as whether adultery simpliciter of two married people was covered by what is now s. 293(1)(a)(ii). Chief Justice Rowell stated (at paras. 3-4):

The Court is of opinion that this section does not cover adultery however much the conduct is to be condemned and however unfortunate the circumstances of this and other cases referred to in the learned Judge's judgment.

We think the crucial words of s-s. (b) are "any kind of conjugal union"; these words predicate some form of union under the guise of marriage, and Parliament had no intention in this section of the Code of dealing with the question of adultery. The section is headed "Polygamy and Spiritual Marriages" and it was originally enacted as an amendment relating to An Act Respecting Offences Relating to The Law of Marriage by 53 Vict., ch. 37, sec. 11, and it is said to have followed the Edmunds Law in the United States, and was aimed at prohibition of polygamy under any guise.

[1007]  Interpreting s. 293 to exclude common law relationships follows, as well, from the AG Canada’s compelling submission based on the amendments in 2000 to multiple federal statutes dealing with marriage, with a view to revising many of them to include common law partnerships and relationships.

[1008]  Section 2 of the Code was amended to add a definition of “common-law partner”. As the AG Canada noted, various provisions in the Code were amended to reflect this recognition of common law conjugal relationships, but s. 293 was left unchanged - unchanged in the context of the decision in Tolhurst (and others) of which Parliament is deemed to have been cognizant when making the amendments flowing from the new definition. In my opinion, these observations answer the submissions of the Amicus based on the statutory use in French of the phrase “union conjugale” for the English “conjugal relationship”.

[1009]  The cases cited by the Amicus which use the two phrases apparently interchangeably are not authority, in my view, for equating the two concepts in s. 293. There, I conclude, “conjugal union” is a term of art and the “union” arises only, as the Attorneys General argue, upon the occurrence of some form of sanctioning event as I have discussed.

[1010]  Declining, for the purposes of s. 293, to equate “conjugal union” with “conjugal relationship” meets many of the void for vagueness concerns advanced, not expressly by the parties, but by Dr. Susan Drummond, who gave evidence for the Amicus and authored “Polygamy’s Inscrutable Criminal Mischief” (2009) 47 Osgoode Hall L.J. 317. The thrust of her argument in that article is that the meaning of conjugality has become so fluid and open-ended that s. 293 fails to provide fair notice of what conduct falls within the scope of the offence.

[1011]  The Amicus, as I have said, suggests that an exceedingly broad scope should be accorded the “conjugal union” prohibited in s. 293. He argues (at para. 140), as I have extracted above, that:

... “conjugal union” means a “marriage-like relationship” or a “conjugal relationship”. It is a broad term, encompassing formal marriages but also including what are sometimes called “common law relationships” The word “conjugal” describes the substance of a relationship, rather than its legal form; it speaks to a relationship between persons that is committed, interdependent and of some permanence. Within the broad category of “conjugal unions” or “conjugal relationships”, the law recognizes at least marriage and common law relationships; within the context of immigration, Canadian law also recognizes a third relationship between “conjugal partners”.

[1012]  The Amicus would look to cases like Malodovich to assist in defining a “conjugal union” for the purposes of s. 293. All this is in aid of the argument that s. 293, especially in subparagraph (1)(a)(ii), is hopelessly overbroad.

[1013]  The Amicus, in urging a finding that the reference in s. 293 to “conjugal union” is synonymous with the latter day concept of a “conjugal relationship”, notes the interchange of those phrases by various courts and tribunals discussing other legislative provisions.

[1014]  In my view, such imprecision, if it is that in those contexts, is not a reason to make the same mistake in interpreting the phrase in s. 293. These submissions do not give appropriate force to the word “union” in the phrase.

[1015]  The original polygamy prohibition was proposed in An Act to Amend an Act Respecting Offences Relating to the Law of Marriage - the law of marriage, not more casual, unformalized relationships. As I have noted, it was followed by the enactment of s. 278 in the Criminal Code 1892, which was found in the part of the Code dealing with marriage offences, as s. 293 is today.

[1016]  That “conjugal union” in s. 293 is premised on the occurrence of some form of sanctioning, again, is made clear by ss. (1)(b). And it is, as well, in ss. (1)(a) where the phrase is introduced. I abbreviate that provision:

293(1)  Every one who

(a)        practises or enters into ...

(ii)        any kind of conjugal union...

whether or not it is by law recognized as a binding form of marriage;

[1017]  A “conjugal union” coming within the prohibition may not need be recognized as a “binding form of marriage”, but the whole thrust of the section is that it must be a purported form of marriage.

[1018]  The Amicus argues that for the purposes of s. 293, it is the simple fact that an accused person is in a conjugal relationship that matters, not the manner in which the relationship was formed. He points to s. 293(2) which provides that:

No averment or proof of the method by which the alleged relationship was entered into, agreed or consented to is necessary in the indictment or upon the trial of the accused.

and submits that it puts the point beyond doubt.

[1019]  I have already expressed my view that “conjugal union” in s. 293 is intended to capture a “marriage”. What s. 293(2) does is obviate the need to prove the method by which that marriage was entered into. It does not, however, relieve of the need to prove its existence.

[1020]  In my view, it is clear that the offence created in ss. 293(1)(a) is premised on some form of sanctioning event because the status prohibited by the section - “polygamy” and “any kind of conjugal union with more than one person at the same time” - both have at their core, as I have discussed, “marriage” (whether or not recognized as legally binding). And “marriage” has at its core the voluntary joining of two individuals with the requisite intent to “marry” and the recognition and sanction by the couple’s community. I have previously noted that a sanctioning event of some formality is contemplated by s. 293.

[1021]  That leaves ss. 293(2) to relieve, as I have indicated, from the need to prove the actual method by which the marriage was entered into. Of course, in many instances the existence of the marriage may well be established by proving the sanctioning event, but that is not absolutely necessary. The existence of the marriage, because of ss. 293(2), may be inferred from all of the circumstances before the Court.

[1022]  I should be clear that in saying a sanctioning event is contemplated by the section, I am not saying that proof of the event is a constituent element of the offence. Section 293(2) says otherwise. What is an element of the offence is a “marriage” with more than one person at the same time, and an indicia of “marriage”, as I have discussed, is some form of sanctioning event.

[1023]  I am not definitively defining “marriage”; it is not my task on this reference to do so. While arguably vague, I am not satisfied that it is unconstitutionally so within the meaning of authorities such as R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, and Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.

[1024]  A law will only be found to be unconstitutionally vague when it is so unintelligible that it fails to provide an adequate basis for legal debate or is incapable of coherent judicial interpretation. As we have seen, however, various experts on this reference, as well as a number of courts, have defined and construed “marriage” and “conjugal union”.

[1025]  This leads to my substantive concerns with the position of the AG Canada. One is in respect of his view that ss. (1)(a)(i) should be interpreted as referring to non-residents of Canada who marry their spouses in a foreign country in accordance with its laws and who then emigrate to Canada. I respectfully disagree. That is a nuance that never found expression in the lead up to the legislation in Canada or in its scant judicial review since then. It is belied, in my view, again, by the closing words of ss. (1): “whether or not it is by law recognized as a binding form of marriage.”

[1026]  That said, it may well be asked what the “conjugal union” prohibition adds to that against “polygamy”. The answer is little, if anything. Of course, Parliament is presumed not to waste words with superfluous legislative language (and hence, the argument proceeds, I should give some separate effect to “conjugal union”), but the fact is that the original polygamy provision was replete with superfluous inclusions. Witness the original express inclusion of “What among the persons commonly called Mormons is known as spiritual or plural marriage”, which was removed, presumably as entirely superfluous, in 1954.

[1027]  The legislation was conceived in an atmosphere of concern for loopholes; the addition of the “conjugal union” prohibition can be seen as a symptom of that concern.

[1028]  As I noted above, the AG Canada submits that properly interpreted, s. 293 prohibits practicing or entering into multiple simultaneous marriages, whether sanctioned by civil, religious or other means.

[1029]  This formulation lacks some precision. It arguably would only capture a male in a polygynous relationship because he is the only one who has entered into multiple marriages. Each wife has only entered into one marriage with that male. Section 293 is intended to capture both parties. And by its terms, it refers to a polygamous relationship (and a conjugal union with more than one person) in the singular. This follows from the singular “union” and the singularity suggested by “whether or not it is by law recognized as a binding form of marriage”. It also follows from the fact that a polygamous relationship is evidenced by a marriage with multiple spouses.

[1030]  Of course, one enters the prohibited relationship of “polygamy” or a “conjugal union with more than one person” by a marriage between, in the case of polygyny, the man and each subsequent wife. Each marriage brings the participants into what I will call the capital “M” Marriage. It is that “Marriage” which is the ultimate target of s. 293(1)(a) and all participants in it are captured by the offence.

[1031]  This view raises a number of potential concerns with the provision as a whole which I must confront directly. First, if s. 293(1)(a) is concerned with capital “M” Marriage and not the individual pair-bondings which lead to that result, what are we to make of the proviso “whether or not it is by law recognized as a binding form of marriage”? One might say that there is no form of polygamy (or conjugal union with more than one person) that has been legal in Canada so the “whether or not” proviso must be referring to the individual pair-bondings because the first of these might indeed be binding.

[1032]  My response is two-fold. Quite arguably, the “whether or not” proviso is simply a way of underlining the intent that the fact of a non-binding second marriage is not a defence to the charge laid as a result of that event. But a more compelling point is this: that the possibility of a form of legally recognized polygamy was indeed in the minds of some Parliamentarians at the time of the initial legislation. As I noted above, when Bill F (the Senate’s predecessor legislation to the Commons’ Bill 65) went to Committee, one senator expressed concern that a provision in the proposed polygamy offence would have exempted from its ambit “any Indian belonging to a tribe or a band among whom polygamy is not contrary to law”.

[1033]  Section 5 of Bill F went even further; it expressly exempted legal polygamy, that is, by its terms it only included polygamy entered into “...in a manner not recognized as a binding form of marriage by the law of the place in which the offence against this Act is committed”. So, in order to make clear that no such exemption was countenanced in the original of s. 293, the “whether or not” proviso can be seen to have been added.

[1034]  One might then ask if that is all so and s. 293(1)(a) is directed at capital “M” Marriage, what is one to make of the offence under s. 293(1)(b)? Does it only capture celebrants of the capital “M” Marriage? Of course, there never would be such a person because, save in the oddest of cases (Stenhouse’s example), there would not likely be a simultaneous marriage between all of the partners in the polygamous relationship. No, what s. 293(1)(b) captures is the celebrant of a pair-bonding which precipitates or exacerbates the polygamous capital “M” Marriage. He or she, by celebrating the precipitating or contributing small “m” marriage, can indeed be viewed as celebrating a “ceremony” (etc.) that purports to sanction the polygamous relationship, that is, to “approve” or “encourage” or “expressly permit” it.

[1035]  It may fairly be said that in interpreting s. 293, I have had “a lot of explaining to do”; that its drafting has required the Court to tread a difficult route in an effort to clarify its meaning. But today’s provision is the product of 1890’s drafting which, as we have seen, created an offence with a number of redundant layers. Those layers, in turn, were stripped away slowly and surely until, in 1954, we were left with the compressed kernel of the offence we see today. I must say that the metaphor of the committee designing the horse comes to mind, but s. 293 is what the Court is left to struggle with; to give effect to, if possible, in light of the rules which govern these matters.

[1036]  From all of this, I conclude that properly interpreted, s. 293(1)(a) prohibits practicing or entering into a “marriage” with more than one person at the same time, whether sanctioned by civil, religious or other means, and whether or not it is by law recognized as a binding form of marriage.

[1037]   The offence is not directed at multi-party, unmarried relationships or common law cohabitation, but is directed at both polygyny and polyandry. It is also directed at multi-party same sex marriages.

[1038]  The emphasis on some form of sanctioning led to much concern in the submissions of the Amicus and a number of the Interested Persons.

[1039]  These were based on the alleged absurdity of such a distinction - the possibility of avoiding prosecution by the simple expedient of not undergoing a sanctioning event.

[1040]  It is the case that I have found Parliament engaging in “line drawing” here, but that is the stuff of many statutory prohibitions. Why .08 and not .07? Drinkers can carefully monitor their consumption to avoid the offence. So be it. At least it is a bright line. Why do we prohibit bigamy, but not adulterous relationships, polygamy but not so-called serial monogamy (marriage, divorce, marriage, divorce, and so on)? Because, absent a division of powers or a Charter argument, Parliament can draw such bright lines and, subject to those considerations, it is not for the Court to say that it cannot.

[1041]  But more importantly, this line reflects, again, the pre-eminent place that the institution of monogamous marriage takes in Western culture and, as we have seen, Western heritage over the millennia. When all is said, I suggest that the prohibition in s. 293 is directed in part at protecting the institution of monogamous marriage. And let me here recognize that we have come, in this century and in this country, to accept same-sex marriage as part of that institution. That is so, in part, because committed same-sex relationships celebrate all of the values we seek to preserve and advance in monogamous marriage.

[1042]  The alarmist view expressed by some that the recognition of the legitimacy of same-sex marriage will lead to the legitimization of polygamy misses the whole point. As Maura Strassberg, Professor of Law at Duke University Law School, points out in “Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage” (1997) North Carolina L.R. 1501 at 1594, the doctrinal underpinnings of monogamous same-sex marriage are indistinguishable from those of heterosexual marriage as revised to conform to modern norms of gender equality. This counters, as well, the argument advanced by many, that “in this day and age” when we have adopted expansive views of acceptable marriage units and common law living arrangements, the acceptance of polygamy, or at least the abandonment of its criminal prohibition, is the next logical step. This is said in the context of the sentiment often expressed that the “State has no business in the bedrooms of the Nation”. Here, I say it does when in defence of what it views is a critical institution - monogamous marriage - from attack by an institution - polygamy - which is said to be inevitably associated with serious harms. That is the debate to which I now turn in the context of s. 293 and alleged breaches of the Charter.

VII.           THE CHARTER

[1043]  When I examined the alleged harms associated with polygamy, I discussed the burden on government to justify criminalizing an activity in an exercise of the criminal law power. Parliament must demonstrate a reasoned apprehension of harm, not scientific proof based on concrete evidence: Sharpe. It need only demonstrate that the harm is not de minimus, not insignificant or trivial. Absent gross disproportionality, the precise weighing and calculation of the nature and extent of the harm is Parliament’s job: Malmo-Levine. As I also discussed, a reasoned apprehension of harm is relevant to the justification analysis under s. 1 of the Charter.

[1044]  On the whole of the evidence here, I conclude that the Attorneys General have certainly demonstrated a reasoned apprehension of harm associated with polygyny. Indeed, they have cleared the higher bar: they have demonstrated “concrete evidence” of harm. I have detailed that evidence at length. I have discussed the varied nature of the harms associated with polygyny and highlighted their coincidence across nations, cultures and socio-economic units.

[1045]  The evidence, in particular that of Drs. Heinrich and McDermott, supports the reasoned view that the harms associated with the practice are endemic; they are inherent. This conclusion is critical because it supports the view that the harms found in polygynous societies are not simply the product of individual misconduct; they arise inevitably out of the practice. And many of these harms could arise in polyandrous or same sex polygamous relationships, rare as those appear to be. Here I mention, without limitation, harm to children (for example, from divided parental investment or as a result of less genetic-relatedness of family members), to the psychological health of the spouses, and to the institution of monogamous marriage.

[1046]  So it is on the basis of this conclusion that I advance to the Charter discussion.

[1047]  The challengers collectively allege that s. 293 offends the following rights and freedoms protected by the Charter:

a)    s. 2(a) - freedom of religion;

b)    s. 2(b) - freedom of expression;

c)     s. 2(d) - freedom of association;

d)    s. 7 - liberty and security of the person; and

e)    s. 15 - equality.

A.              Freedom of Religion

[1048]  As there is considerable overlap in the submissions of the parties and Interested Persons with respect to the Charter, I will generally aggregate them and refer simply to the “challengers” and the “defenders”.

1.               Positions of the Parties

[1049]  Section 2(a) of the Charter guarantees freedom of conscience and religion.

[1050]  The Amicus, the FLDS and the Polyamory Advocacy Association contend that s. 293 infringes s. 2(a).

[1051]  I focus here on the submissions of the Amicus, who contends that s. 293 does so in both purpose and effect.

a)               Purpose

[1052]  The Amicus submits that s. 293’s improper purpose is twofold.

[1053]  First, he says that s. 293 is the product of religious animus. That the prohibition targeted Mormons is well established on the evidence and cannot be seriously doubted given the specific reference in the original text to curtailing “[w]hat among the persons commonly called Mormons is known as spiritual or plural marriage”. The prohibition also took aim at the Aboriginal cultural practice of polygamy as part of what Dr. Drummond describes as the state’s “larger coercive colonial project intended to ‘civilize’ Aboriginal populations that included residential schools” (at para. 71).

[1054]  The second aspect of s. 293’s religious purpose was to mandate a practice - monogamy - that was intrinsically rooted in the dominant religion of the day, mainstream Christianity. In so doing, the state impermissibly involved itself in the establishment of a particular religious viewpoint.

[1055]  The Amicus submits that to ascribe to s. 293 any other purpose, such as the prevention of harm, is to impermissibly shift its true purpose ex post facto: R. v. Big M. Drug Mart, [1985] 1 S.C.R. 295.

[1056]  The defenders argue that this characterization of s. 293’s purpose is inconsistent with the evidence that the law was directed to the secular purpose of protecting women, children and society from the harms of polygamy. Far from being the product of religious animus directed at early Mormon settlers, s. 293 continued a prohibition that extended back over two millennia. The original text of the provision expressly prohibited polygamy whether “religious or secular”, further evidence that Parliament’s concern was with the practice of polygamy, not Mormon religious belief.

[1057]  Citing R. v. Edward Books and Art Ltd., [1986] 2 S.C.R. 713, the defenders additionally argue that laws which impact religious beliefs or practices should not necessarily be characterized as having a religious purpose. They also cite R. v. M.S., [1996] B.C.J. No. 2302, regarding s. 155 of the Criminal Code, the prohibition against incest. As Mr. Justice Donald wrote (at para. 55):

Section 155 seeks to prevent the harm to individuals and to the community caused by incest. The fact that the offence is rooted in a moral principle developed within a religious tradition cannot support a claim for interference with the freedom to believe or not to believe under the Charter.

[1058]  Finally, the defenders say that while society’s understanding of the harms associated with polygamy may have become more nuanced over the many years since the prohibition was enacted, the prohibition’s core purpose has always been the protection of individuals and society from harm. That remains its purpose today, and, thus, it has not impermissibly shifted.

[1059]  While early Charter jurisprudence, such as Big M. Drug Mart, required that a law’s constitutionality be judged with reference to its original objective, the scope of the “shifting purpose doctrine” has been clarified in later decisions.

[1060]  In R. v. Butler, [1992] 1 S.C.R. 452, the Supreme Court held that laws premised on notions of morality and social harm generally speaking could withstand scrutiny notwithstanding that the content of those notions had evolved over time (at 494 - 95):

I do not agree that to identify the objective of the impugned legislation as the prevention of harm to society, one must resort to the "shifting purpose" doctrine. First, the notions of moral corruption and harm to society are not distinct, as the appellant suggests, but are inextricably linked. It is moral corruption of a certain kind which leads to the detrimental effect on society. Second, and more importantly, I am of the view that with the enactment of s. 163, Parliament explicitly sought to address the harms which are linked to certain types of obscene materials. The prohibition of such materials was based on a belief that they had a detrimental impact on individuals exposed to them and consequently on society as a whole. Our understanding of the harms caused by these materials has developed considerably since that time; however this does not detract from the fact that the purpose of this legislation remains, as it was in 1959, the protection of society from harms caused by the exposure to obscene materials.

See also: R. v. Levkovic, (2008), 235 C.C.C. (3d) 417 (Ont. S.C.), appeal allowed on other grounds, for more recent comment on the doctrine.

b)               Effect

[1061]  The test for a prima facie infringement of s. 2(a) was set out in Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 (at paras. 56 and 59):

Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual's spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and ( 2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered.

...

It consequently suffices that a claimant show that the impugned contractual or legislative provision (or conduct) interferes with his or her ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.

[1062]  Applying this test, the Amicus submits that s. 293 abridges religious liberty with respect to three different religious groups: fundamentalist Mormons, Muslims and Wiccans. The provision prohibits a practice that is, for some, tightly bound up in their religious beliefs and subjects them to penal sanction.

[1063]  The Amicus also urges the Court to keep in mind the consciousness with which s. 293 criminalizes beliefs and practices. When originally enacted in 1890, the law prohibited everyone from entering into polygamy “by the rites, ceremonies, forms, rules or customs of any denomination, sect or society, religious or secular.” Prior to 1954, the provision criminalized “[w]hat among the persons commonly called Mormons is known as spiritual or plural marriage”. Section 293(1)(b) continues to criminalize everyone who “celebrates, assists or is a party to a rite, ceremony, contract or consent that purport to sanction a relationship mentioned in subparagraph (a)(i) or (ii)”.

[1064]  The FLDS advances the same position specifically with respect to fundamentalist Mormons, focussing on the evidence of those witnesses who said that plural marriage was an essential aspect of the fundamentalist Mormon faith. While acknowledging that freedom of religion is not absolute, the FLDS submits that polygamy in and of itself does not cause harm to, or interfere with, the rights of others. Fundamentalist Mormon doctrine does not espouse or justify the abuse of women or children. These are “the crimes of man, not of practice based on religious belief” (at para. 93).

[1065]  The Polyamory Advocacy Association argues that s. 293 inhibits the ability of the polyamorous community to develop new forms of religious rights pertaining to polyamory.

[1066]  While polyamory has been a largely secular phenomenon to date, the evidence indicates that some polyamorists do favour religious ceremonies. Criminalization of these ceremonies significantly impairs the ability of polyamorists to experiment and innovate in this regard. As such, s. 293, as interpreted by the Attorneys General, directly infringes the religious liberty of polyamorists.

[1067]  The defenders respond, as the Supreme Court has repeatedly underscored, that no matter how sincerely held the belief, religiously motivated practices that harm or interfere with the rights and liberty of others do not come within the protective ambit of s. 2(a).

[1068]  This principle can be traced back to Big M. Drug Mart, where Dickson C.J.C. clearly contemplated that the s. 2(a) guarantee would be subject to limitations (at 346):

The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.

[1069]  The Supreme Court has since reiterated and reapplied this holding in different contexts; see, for example, Young v. Young, [1993] 4 S.C.R. 3 (whether an access parent should be able to teach his children his religious views over the objection of the custodial parent); P.(D.) v. S.(C.), [1993] 4 S.C.R. 141 (similar fact scenario as Young v. Young) ; Amselem (Orthodox Jews erecting succahs on balconies of co-owned property); and Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772 (whether teachers in public schools can hold discriminatory religious beliefs about homosexual persons).

[1070]  In arguing that any reconciliation of rights must occur as part of the s. 1 justification analysis and not before, the Amicus cites Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, where the issue was the religious liberty of a student to wear a kirpan to school. The Court wrote (at para. 30):

This Court has frequently stated, and rightly so, that freedom of religion is not absolute and that it can conflict with other constitutional rights. However, since the test governing limits on rights was developed in Oakes, the Court has never called into question the principle that rights are reconciled through the constitutional justification required by s. 1 of the Canadian Charter.

[1071]  The CCRC/Asper Centre offer the most nuanced submissions on this particular question.

[1072]  While acknowledging the apparent inconsistency in the Supreme Court jurisprudence, the CCRC/Asper Centre suggest that a careful review of the decisions discloses no binding authority which would require the Court to extend s. 2(a) protection to the practice of religious beliefs that infringe the security of the person (material interference with their physical or psychological integrity) of others.

[1073]  In none of the cases was the Supreme Court faced with an asserted religious practice that was per se harmful. The balcony structures in Amselem were not themselves dangerous; in Multani, the Court proceeded on the basis that kirpans were not inherently dangerous. B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, was a decision regarding the right of Jehovah’s Witnesses to deprive their children of medically necessary blood transfusions. Even there, the majority position, which was that the balancing in that case took place under s. 1, was premised on the view that the parents’ religious freedom did not cause an immediate risk of harm.

[1074]  In the context of polygamy, the assertion of religious freedom occasions at least a risk of harm, if not actual harm itself.

[1075]  The CCRC/Asper Centre identify two practical implications of situating the reconciliation of competing rights at s. 2(a) as opposed to s. 1.

[1076]  The first is the question of onus. To require the government and the court to embark upon a justificatory analysis where conduct is per se harmful would be a gross misuse of resources. Section 2(b) is a useful analogue in this regard. Despite the broad ambit of the right, the Supreme Court has held that physical violence is not protected expression. No. s. 1 analysis is therefore necessary.

[1077]  The second is symbolic, but no less important for that reason. The Charter serves as a statement of the values Canadian society holds so fundamental as to be shielded from state interference. Consequently, there is substantive value in upholding a vision of the Charter in which conduct that occasions material, physical or psychological harm, or serious risks thereof, falls beyond the ambit of constitutional protection.

[1078]  The CCRC/Asper Centre takes no position as to whether it may be necessary to proceed to s. 1 to justify s. 293 as it applies to other circumstances. However, they submit that children are entitled to have their fundamental rights upheld in the first instance. Where the conduct being limited infringes the Charter rights of children, the justification analysis is neither required nor appropriate.

[1079]  The defenders say that the evidence is overwhelming that whether religiously motivated or otherwise, polygamy is inherently harmful to, and interferes with the Charter rights of, women and children.

[1080]  The rights of women and children to be free from physical, psychological, economic, social and legal harms are enshrined in ss. 7, 15 and 28 of the Charter. Interpretations of numerous conventions and treaties to which Canada is a signatory have also recognized the right of women and children to be free from the kinds of harms that flow from polygamy. International human rights law additionally confirms that polygamy is not to be protected by religious freedom, as the practice tends to deprive women and children of their own fundamental rights.

[1081]  The AGBC adds that the particular manifestation of religious liberty in this case is unique in a number of respects. The first he describes is this (at para. 277):

This case may be unique in the section 2(a) jurisprudence in that, because polygamy’s harms are most obvious where there is the presence of an external, supposedly binding authority sanctioning it, the religiosity of the practice itself exacerbates the harm. The evidence that has emerged from expert and lay witnesses alike indicates that, the greater the religious fervor with which polygamy is intertwined, the more harmful it can expect to be. This is not so with any other case asserting a religious right to do something prohibited.

[1082]  Another is the “zero-sum” nature of polygamy. The mathematics of polygamy when practiced in an insular or isolated religious society dictate that the right can only be exercised by depriving others who share the same beliefs of the same right.

2.               Conclusion

[1083]  As I have related, the Amicus, in particular, submits that s. 293 breaches s. 2(a) of the Charter in both its purpose and its effects.

[1084]  As to its purpose, the Amicus says that the provision was aimed at both prohibiting Mormon and Aboriginal practices of plural marriage and mandating Christian monogamy.

[1085]  Big M. Drug Mart was one of the first cases to consider whether legislation had been enacted for an improper purpose under s. 2(a). Chief Justice Dickson (and four colleagues) concluded that the Lord’s Day Act had been enacted for the religious purpose of compelling sabbatical observance, and that it simply had no secular purpose (at 331):

A finding that the Lord's Day Act has a secular purpose is, on the authorities, simply not possible. Its religious purpose, in compelling sabattical observance, has been long-established and consistently maintained by the courts of this country. (para. 78)

[1086]  The Chief Justice said this of freedom of religion (at 336):

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

... Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of "the tyranny of the majority".

[1087]  Chief Justice Dickson (with Chouinard and Le Dain JJ.) revisited a similar issue in Edwards Books and Art Ltd., which concerned the constitutionality of Ontario’s Sunday closing legislation, the Retail Business Holidays Act, R.S.O. 1980, c. 453. In concluding that the legislation served a secular purpose, he said (at para. 62):

I agree with Tarnopolsky J.A. that the Retail Business Holidays Act was enacted with the intent of providing uniform holidays to retail workers. I am unable to conclude that the Act was a surreptitious attempt to encourage religious worship. The title and text of the Act, the legislative debates and the Ontario Law Reform Commission's Report on Sunday Observance Legislation (1970), all point to the secular purposes underlying the Act.

[1088]  There is little question that the arrival of Mormons from Utah was a galvanizing influence on many of those who supported the introduction of s. 293. However, I do not agree with the Amicus that this reflected religious animus on the part of Parliament. Polygamy was not prohibited because it was a religious belief, or, to turn the coin, because Parliament wanted to impose a Christian religious belief in monogamous marriage. I find that the original prohibition was prompted by largely secular concerns with perceived harms associated with the practice to women, children and society. As I have discussed, socially imposed universal monogamy, while embraced by Christianity, had its roots in Greco-Roman society.

[1089]  The polygamy prohibition enacted in 1890 reflected a historical aversion to the practice that was many centuries old. I agree with the defenders of s. 293 that its purpose has not impermissibly shifted over the time since its introduction. It has always been seen as addressing the risk of harm to women, children and society, although our understanding of the harms associated with polygamy has become more nuanced over time. Indeed our appreciation of those harms has become much more nuanced since the early 1990s when some of the legal opinions expressing the view that the prohibition could not withstand Charter scrutiny were first advanced.

[1090]  This brings us to a consideration of the effects of the prohibition. As I have noted, the test for a prima facie infringement of s. 2(a) was set out in Amselem. The aggrieved individual must show that:

1.       the claimant sincerely holds a belief or practice that has a nexus with religion; and

2.       the impugned measure interferes with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.

[1091]  Applying this test in the context of the evidence touching fundamentalist Mormons, some Muslims and Wiccans, I agree that s. 293 triggers a breach of their religious liberty.

[1092]  There is evidence that for at least some members of each of these faiths, plural marriage is a sincerely held religious belief:

a)    There is extensive evidence that many fundamentalist Mormons hold a sincere belief that plural marriage is an essential aspect of their faith. Mary Batchelor, for example, testified that “plural marriage is a very vital and intricate part of my belief system, and I do not believe that I can achieve the fullness of my potential as a woman and as well as a daughter of God without it” [Transcript, 20 January 2011, p. 5, ll. 41 - 44]. Witness No. 4 testified that “plural marriage - celestial and plural marriage is something that I have to enter and abide to gain my highest degree in the celestial kingdom” [Transcript, 26 January 2011, p. 1, l. 46 - p. 2, l. 1].

b)    With respect to Muslims, Dr. Emon deposes that Muslims who engage in polygynous marriages in Canada may justify their acts by reference to the Qur’an and subsequent legal doctrines (at para. 22).

c)     As for Wicca, Mr. Wagar gives evidence that within the faith, “all forms of consensual sexual and emotional ties that adults freely enter into are sacred, or at a minimum, are potentially routes to an encounter with the sacred” (at para. 8). This includes relationships that involve more than two people.

[1093]  By criminalizing polygamy, s. 293 clearly interferes with the ability of individuals who sincerely hold these religious beliefs to act in accordance with them in a manner that that is more than trivial or insubstantial.

[1094]  Assuming that any particular polyamorous relationship is captured by s. 293 as I have interpreted it, I do not agree that the provision infringes their s. 2(a) rights. What evidence I have that suggests that polyamorists are a discrete group sharing truly common principles is scant. Polyamory is, I conclude, a largely secular phenomenon, as varied in practice as the imagination of its practitioners. While some polyamorists who gave evidence suggested that they may wish in the future to formalize their arrangement with a religious or secular ceremony, I do not accept that this reflects a practice or belief meeting the Amselem test.

[1095]  Before concluding this discussion, I must consider whether harm and competing rights are internal limits to s. 2(a), as the defenders argue, or matters to be weighed in the s. 1 analysis.

[1096]  While I sympathize with the CCRC/Asper Centre’s principled approach to defining the scope of s. 2(a) and, in particular, their view that there is real value in upholding a vision of the Charter in which conduct that occasions harm, or a serious risk thereof, falls outside the scope of constitutional protection, the better view, based on the jurisprudence to date, suggests that these issues should be addressed in the s. 1 analysis. I have noted (see para.1070) the Amicus’ reliance on Multani to support his submission that rights are reconciled through the constitutional justification required by s. 1 of the Charter.

[1097]  While polygamy gives rise to harms, or at least the risk of significant harm, and thus this is a case where arguably there are limits on the religious freedom claimed by the challengers, this case is also about competing fundamental rights under the Charter. Multani holds that competing rights are best reconciled under s. 1 (at para. 27, quoting from Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825):

In these circumstances, there can be no doubt that the detailed s. 1 analytical approach developed by this Court provides a more practical and comprehensive mechanism, involving review of a whole range of factors for the assessment of competing interests and the imposition of restrictions upon individual rights and freedoms.

[1098]  Accordingly, I will here express my conclusion: I accept the Amicus’ submissions that s. 293 violates the religious liberty of those persons I have described in a manner that is non-trivial and not insubstantial.

B.              Freedom of Expression

1.               Positions of the Parties

[1099]  The claim that s. 293 offends freedom of expression is advanced by the Polyamory Advocacy Association.

[1100]  The Association observes that s. 293, as interpreted by the Attorneys General, captures purely secular formalities and ceremonies. These celebrations take place, in part, to convey meaning to an audience. The public celebration of a polyamorous relationship affirms the value and legitimacy of the union. It is also an expression of love and commitment. By prohibiting such expression, s. 293 infringes s. 2(b).

[1101]  The AGBC responds that Mr. Justice Pitfield dismissed a similar argument in EGALE Canada Inc. v. Canada (Attorney General) 2001 BCSC 1365 [EGALE] at para. 132, where he held that “the words ‘freedom of expression’ are not apt to describe the formalization of the legal relationship that is marriage”.

[1102]  He further submits that the essence of the s. 293 offence is the entering into or being in a particular type of sanctioned relationship. What is said about the relationship is only one part of the legal context. By way of example, entering into a fraudulent contract involves a communicative component but it is not one that attracts Charter protection. The same reasoning holds true for polygamy.

2.               Conclusion

[1103]  In my view, the right to expressive freedom does not capture the formalization of a polygamous marriage.

[1104]  I observe that in EGALE, Pitfield J. said much the same thing with respect to monogamous marriage. While the Court of Appeal reversed that decision, it expressly declined to comment on the soundness of that particular aspect of it.

[1105]  I will say no more on this particular breach.

C.              Freedom of Association

1.               Positions of the Parties

[1106]  Section 2(d) of the Charter protects freedom of association.

[1107]  The Amicus, the FLDS and the Polyamory Advocacy Association submit that s. 293 targets the associational aspects of polygamy contrary to this guarantee.

[1108]  As the Amicus submits (at paras. 311 - 312):

The heart of the s. 2(d) claim is that s. 293 prohibits more than two individuals from associating with one another in a conjugal union. As seen above, the criminal law does not prohibit a whole range of activities that can be characterized as polygamous, such as:

(a)        Serial monogamy, through divorce and remarriage (de facto polygyny, as it is sometimes called from an evolutionary psychology perspective);

(b)        Having sex or affairs with any number of partners while in a conjugal union with an unknowing and unconsenting partner (that is, adultery);

(c)        Having sex with many partners at the same time;

(d)        Having children with more than one partner, whether as a result of conjugal union, one night stands or even group sex; and

(e)        Raising children by more than two adults, such as through blended families, including where one or more adults are unrelated to the children.

Yet, while the law is tolerant of these behaviours, s. 293 criminalizes three adults from agreeing to form a conjugal union together. Section 293 prohibits their association together as a conjugal union. While polygamous activities are not prohibited, s. 293 criminalizes polygamous groupings.

[1109]  The FLDS expresses its position in this way (at paras. 102 - 103):

The effect of section 293, therefore, is to prohibit the formation of polygamous relationships, and thus deprives members of the FLDS from associating with one another as a family and from association with one another in the pursuit of their religious beliefs. The activity or goal that the members of the FLDS are pursing commonly, through plural marriage, is to establish a family and thus being able to enter the highest level in the celestial kingdom.

Section 293 also affects the rights of members of the FLDS to associate with family members, and this affects the way men and women live in the FLDS. In particular, the law prevents individuals from living together in a manner that each of them otherwise freely consents to live. The criminal law provision does not prohibit the behaviour of cohabiting with more than one person, or having sex with more than one person, or having children with more than one person or loving more than one person. For members of the FLDS the effect of section 293 is to prohibit their ability to contract with other individuals so as to settle upon the consequences that they agree should flow from such otherwise lawful behaviours.

[1110]  The Attorneys General answer that s. 293 does not engage s. 2(d) of the Charter, as intimate personal and familial relationships are not a protected form of association.

[1111]  The Court of Appeal made this point in R. v. M.S., involving consensual incest between a father and adult daughter. Justice Donald agreed with the views of Mr. Justice Tarnopolsky in Catholic Children’s Aid Society of Metropolitan Toronto v. S.(T.) (1989), 69 O.R. (2d) 189 (C.A.) [Catholic Children’s Aid Society] that s. 2(d) only protected association with persons beyond the primary family unit (at 204):

The freedoms of assembly and association are necessarily collective and so mostly public. Our constitutional concerns have not been with assemblies within families or associations between family members. Rather, the protections we have been concerned with are for those assemblies and associations that take us outside the intimate circle of our families. The family is a collective, but the desire of one family member to associate with another is not so much for the purpose of pursuing goals in common, nor even pursing activities in common.

[1112]  Freedom of association was also raised by claimants in challenges to the exclusion of same-sex couples from the definition of marriage. The courts did not accept that s. 2(d) could be engaged by the inability to marry: see, for example, Halpern v. Canada (Attorney General) (2002), 60 O.R. (3d) 321 (Div. Ct.) and EGALE.

[1113]  The challengers say that this relatively brief line of authority is not dispositive, and they cite dicta favouring their view that familial relationships are protected by s. 2(d). The Amicus also draws upon American jurisprudence, which he says provides persuasive authority for including intimate or familial relationships within associational freedom.

[1114]  In Black v. Law Society of Alberta, [1986] 3 W.W.R. 590 (Alta. C.A.), Mr. Justice Kerans wrote as follows regarding the scope of s. 2(d) (at 542 - 543):

... the special status given to the freedom of association in Canada reflects our tradition about the importance for a free and democratic society of non-governmental organization. In my view, the freedom includes the freedom to associate with others in exercise of Charter-protected rights and also those other rights which - in Canada - are thought so fundamental as not to need formal expression: to marry, for example, or to establish a home and family, pursue an education, or gain a livelihood.

[Emphasis added.]

[1115]  This passage was quoted with approval by Dickson C.J.C., dissenting with Madam Justice Wilson, in Reference re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 [Alberta Reference]. Dickson C.J.C. would have interpreted s. 2(d) broadly and rejected a constitutive approach whereby freedom of association entailed only the freedom to belong to or form an association. He wrote (at 362):

The essentially formal nature of a constitutive approach to freedom of association is equally apparent when one considers other types of associational activity in our society. While the constitutive approach might find a possible violation of s. 2(d) in a legislative enactment which prohibited marriage for certain classes of people, it would hold inoffensive an enactment which precluded the same people from engaging in the activities integral to a marriage, such as cohabiting and raising children together. If freedom of association only protects the joining together of persons for common purposes, but not the pursuit of the very activities for which the association was formed, then the freedom is indeed legalistic, ungenerous, indeed vapid.

[1116]  These two decisions were subsequently cited in EGALE, where Pitfield J. addressed whether freedom of association was infringed by the then heterosexual definition of marriage. In concluding it was not, he wrote (at paras. 138-139):

While it may be an overstatement to say that the fundamental freedom of association may never be relevant in the context of marriage, I conclude it is not relevant in the context of Parliament’s ongoing recognition of marriage as an opposite-sex relationship.

Permanent relationships between gays and lesbians are not prohibited by anything that Parliament or the provinces have, or have not, done with respect to the legal nature of marriage. Indeed, legislative progress in many provinces confirms that gay and lesbian relationships are a recognized and generally accepted aspect of today’s society. The fact that such relationships do not have the approbation of the state so as to give rise to the rights and obligations that immediately result upon marriage does not amount to a denial of the fundamental freedom of association.

[1117]  The challengers highlight the distinction that was drawn between the prohibition of an associational activity and state approbation giving rise to rights and obligations. The present case concerns the former.

[1118]  Another way in which the challengers respond to the Attorneys General’s submissions is with reference to the Supreme Court’s expanded interpretation of s. 2(d) in recent years; beginning with Dunmore v. Ontario (Attorney General), 2001 SCC 94 and continuing with Health Services and Support - Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27 [Health Services]. While these decisions arose in a labour relations context, they nevertheless signal a shift to a contextual and purposive approach to s. 2(d) that allows for a broader range of associations within its protection.

[1119]  In Health Services, for example, the Court held that s. 2(d) protections should be extended to collective bargaining, overturning the Labour Trilogy (which included Alberta Reference) in the process.

[1120]  The Amicus observes that the courts in both R. v. M.S. and the Catholic Children’s Aid Society relied on the majority judgment in the Alberta Reference to conclude that freedom of association did not extend to intimate or family relationships. He says that conclusion is now suspect.

[1121]  In its contextual assessment as to whether freedom of association extended to the right to collective bargaining, the Supreme Court in Health Services first noted that “the language of s. 2(d) is cast in broad terms and devoid of limitations” (at para. 39). It then went on to consider the history of collective bargaining in Canada, collective bargaining in relation to freedom of association in the larger international context, and whether Charter values favoured an interpretation of s. 2(d) that protected collective bargaining.

[1122]  The Amicus submits that including intimate or family relationships within s. 2(d)’s protection would be consistent with the liberty values enshrined in s. 7, in that constitutionally protecting family relationships would enhance human dignity and respect for personal autonomy. It would also be consistent with Canada’s obligations under international law.

[1123]  With respect to these same contextual factors, the AGBC says that this Court has heard no evidence regarding the history of associational guarantees in the family setting so as to establish a historical case for inclusion. The consensus in international law is that polygamy should be prohibited. Finally, on the evidence in this case, a right to marry polygamously is inconsistent with and does not promote other Charter rights, freedoms and values.

2.               Conclusion

[1124]  I have outlined at some length the positions of the parties on the s. 2(d) argument. There is no doubt that the jurisprudence has given a more robust scope to the freedom to associate protected by s. 2(d) since the majority judgment in the Alberta Reference. But I note that neither Dunmore nor Health Services expressly considered or cast doubt on the decisions in Catholic Children’s Aid Society or R. v. M.S.

[1125]  In Dunmore, the majority reviewed the s. 2(d) jurisprudence and said (at para. 16):

As these dicta illustrate, the purpose of s. 2(d) commands a single inquiry: Has the state precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals?

And Mr. Justice Bastarache for that majority concluded (at para. 18):

In sum, a purposive approach to s. 2(d) demands that we “distinguish between the associational aspect of the activity and the activity itself”, a process mandated by this Court in the Alberta Reference (see Egg Marketing, supra, per Iacobucci and Bastarache JJ., at para. 111). Such an approach begins with the existing framework established in that case, which enables a claimant to show that a group activity is permitted for individuals in order to establish that its regulation targets the association per se (see Alberta Reference, supra, per Dickson C.J., at p. 367). Where this burden cannot be met, however, it may still be open to a claimant to show, by direct evidence or inference, that the legislature has targeted associational conduct because of its concerted or associational nature.

[1126]  In my view, it cannot be said in the case of s. 293 that Parliament “has targeted associational conduct because of its concerted or associational nature” [emphasis added]. It has targeted polygamy because of the physical, psychological and social harms perceived to be associated with the practice.

[1127]  Section 293 does not infringe s. 2(d) of the Charter.

D.              Liberty and Security of the Person

1.               Positions of the Parties

[1128]  Section 7 of the Charter guarantees everyone

the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[1129]  The s. 7 analysis proceeds in two stages. First, the court must identify whether there is a deprivation of life, liberty or security of the person. Second, the court must determine whether, if there is a deprivation, that deprivation is in accordance with the principles of fundamental justice.

a)               Interests at Stake

i.                 Liberty

[1130]  It is common ground that the potential for imprisonment under s. 293 sufficiently implicates the liberty interest to trigger a s. 7 inquiry.

[1131]  However, the challengers assert that s. 293 also engages the liberty interest in a richer, more nuanced way. Not limited to physical restraint, they say that the right to liberty is also engaged “when the state steps in to prohibit ... fundamental life choices that ‘[e]veryone’ is otherwise free to pursue”: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 (at para. 217) per Binnie J., dissenting, but not on this point.

[1132]  In Malmo-Levine, Binnie J. described how considerations of personal autonomy, short of imprisonment, are sufficient to trigger s. 7 liberty interests (at para. 85):

In Morgentaler, supra, Wilson J. suggested that liberty "grants the individual a degree of autonomy in making decisions of fundamental personal importance", "without interference from the state" (p. 166). Liberty accordingly means more than freedom from physical restraint. It includes "the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference": Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 66; B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 80. This is true only to the extent that such matters "can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence": Godbout, supra, at para. 66. See also Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, at para. 54; Buhlers v. British Columbia (Superintendent of Motor Vehicles) (1999), 170 D.L.R. (4th) 344 (B.C.C.A.), at para. 109; Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 44 O.R. (3d) 73 (C.A.).

[1133]  The challengers submit that choice of family arrangement undoubtedly falls into the category of fundamental life choices basic to individual autonomy, dignity and self-identity. Indeed, they say, it is difficult to contemplate a more intensely personal and private decision.

[1134]  The AGBC is prepared to accept that the s. 7 liberty interest is engaged with or without the threat of incarceration, but observes that the only consequence is that the Court must also weigh this second infringement of liberty in its fundamental justice analysis, particularly with respect to proportionality.

ii.               Security of the Person

[1135]  The Civil Liberties Association argues that s. 293 interferes not only with liberty but also with security of the person. It submits (at para. 88):

The individual’s right to security of the person encompasses the notions of dignity and the right to privacy, and has an element of personal autonomy. Like the right to liberty, the right to security of the person protects the right of the individual to make fundamental life choices such as: having meaningful access to abortion; having the right of a parent to nurture a child, care for its development and made decisions for it in fundamental matters such as medical care; having access to responsive medical services; and for sexual assault victims, having the ability to seek therapy without fear of their private records being disclosed. As the Supreme Court acknowledged in Blencoe v. British Columbia (Human Rights Commission), the decisions protected by the right to security of the person are “compelling”, “basic to individual autonomy” and “basic to individual dignity”.

[1136]  The Civil Liberties Association says that an individual’s choices about his or her conjugal relationship clearly fall within the category of life choices protected by the right to security of the person.

[1137]  Security of the person affords protection from serious state-imposed psychological stress and assaults to emotional integrity by the criminal law: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.

[1138]  The evidence on this reference establishes that s. 293, by criminalizing plural relationships, produces a constitutionally cognizable level of psychological stress for individuals living in plural relationships. As but one example, the choice of certain of the witnesses to give their evidence anonymously speaks for itself in terms of the degree of psychological stress imposed by the criminalization of their relationships. Numerous witness, both fundamentalist Mormon and polyamorous, also gave evidence of the adverse psychological impacts of criminalization.

b)               Principles of Fundamental Justice

[1139]  The principles of fundamental justice s. 293 is alleged to offend are arbitrariness, overbreadth and gross disproportionality.

[1140]  The Amicus adds a fourth, which is that consent is a defence to criminal liability.

[1141]  The defenders say that none of these withstand scrutiny.

i.                 Overbreadth

[1142]  A law must impair fundamental rights only to the extent necessary to achieve its purpose. A law that goes further is overbroad: R. v. Heywood, [1994] 3 S.C.R. 761

[1143]  The challengers maintain that s. 293 is drastically overbroad if its objective is protection from harm:

a)    It criminalizes all polygamous conjugal unions whatever their form and regardless of whether there is harm to any individual. Along with prohibiting polygamous unions formed as a result of emotional or cultural coercion, s. 293 prohibits those entered into by empowered and consenting adults.

b)    It criminalizes all parties to a polygamous conjugal union, whether man or woman, consenting adult or exploited child, abuser or victim.

c)     It is overbroad in the nature of the message of denunciation it sends to those it criminalizes. In this regard, the Amicus says (at paras. 610 - 611):

Not only does s. 293 criminalize relationships that are not harmful and individuals who have not caused harm, it also denounces conduct that is not inherently harmful. Despite the Attorneys’ strenuous protestations to the contrary, polygamy is plainly not harmful in and of itself. Polygamous unions can provide a context for a range of abuses (just as can any family form), but polygamous unions can also be beneficial to all participants, such that they grow as individuals and members of their society.

The Attorneys might argue that s. 293 would not be employed except where there is actual harm to a woman or child. Leave aside that such selective enforcement of the law cannot save the law (particularly given the discrimination that criminalization engenders against polygamists) and just take the example of a woman or child actually being harmed in a polygamous relationship. A husband, who is determined to have caused the harm, is duly convicted for polygamy. What message does that send society?  The prosecution was motivated because the man harmed another individual, and yet he was convicted of polygamy. Does the victim not deserve to know that the law denounces the harm the man inflicted?  There is a fatal disconnect here. Section 293 does not concern harm to individuals, and a conviction for polygamy does not denounce the infliction of harm upon individuals.

[1144]  The Amicus submits that beyond being overbroad, s. 293 is actually unnecessary, as a suite of laws exist to target harms of criminal magnitude that might arise in some polygamous relationships. These include:

a)    Criminal Code, s. 153 - sexual exploitation;

b)    Criminal Code, s. 266 - assault;

c)     Criminal Code, s. 271 - sexual assault;

d)    Criminal Code, s. 273.3 - removal of a child from Canada;

e)    Criminal Code, s. 279(2) - forcible confinement;

f)      Criminal Code, s. 279.01 - trafficking in persons;

g)    Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, ss. 13 and 30 - removal of child in need of protection; and

h)    Immigration and Refugee Protection Act, s. 118 - trafficking in persons.

Unlike s. 293, these offences only target conduct that is harmful.

[1145]  The Amicus argues that the Attorneys General have not brought forward any convincing evidence that these more targeted laws cannot be effectively used to punish and deter harmful conduct in polygamous relationships. Any assertions that offences such as exploitation and trafficking are under-reported and difficult to prosecute can be said of most crimes, particularly those that arise in a family setting. Difficulty of prosecution in any other context would never be said to constitute grounds to violate the Charter.

[1146]  Beginning with this last submission first, the Attorneys General answer that Parliament is not precluded from imposing complementary measures to address social harms, citing Sharpe and Malmo-Levine.

[1147]  Moreover, say the Attorneys General, many of the alternative offences are both dramatically underreported and difficult to investigate, especially in the context of insular immigrant groups or closed religious communities where polygamy is most likely to thrive. An additional concern that became apparent during the testimony of some of the witnesses is that family members are not always able to identify harmful conduct in their midst. The evidence of one of the anonymous witnesses that she saw nothing wrong in a teenage girl being married to a much older man bears noting in this regard.

[1148]  The Attorneys General further respond to the overbreadth challenge with the following submissions:

a)    Regardless whether any particular polygamous relationship is harmful to the immediate participants, all polygamous marriages expose the participants to a heightened risk of harm. Further, many of the harms of the practice extend well beyond the immediate participants to their children, the broader community and the state. Where a law addresses behaviour that carries either the risk of harm or social harms, it is not necessary that the state prove harm in an individual case; the state is entitled to impose a single enforceable standard in the interests of proof and enforcement.

b)    The challengers’ “criminalization of victims” objection is based on the false premise that the sole legitimate objective of s. 293 is the protection of wives themselves. While in many cases the wives will suffer harm, this harm is not the only justification for the prohibition. If the Court accepts that polygamy also engenders social harms, which is amply established on the evidence, then this argument necessarily collapses. Common sense and prosecutorial discretion will ensure that the blanket prohibition is not unreasonably applied.

c)     As for polyamory, only vague definitions have been offered as to what the term means, and none is capable of supporting any practical distinction between harmful polygamy and supposedly benign polyamory. Moreover, given that polyamory necessarily entails an increase in the number of non-related cohabitants, there is no reason to expect that the predicted increase in associated harms would apply with any less rigour than in the context of religiously motivated polygamy. Finally, it appears that most of the relationships the Polyamory Advocacy Association describes as polyamorous would not be captured by s. 293, in any event.

ii.               Arbitrariness

[1149]  A law is arbitrary within the meaning of s. 7 if it lacks a real connection on the facts to the purpose the law is said to serve.

[1150]  The challengers describe s. 293 as the epitome of an arbitrary law.

[1151]  The objective of s. 293 is said to be the protection of women and children from harm or the reasonable apprehension of harm, yet, it criminalizes both women and children if they participate in a plural marriage.

[1152]  The harms alleged to be suffered by children of polygamous unions are the same as those suffered by children of abusive monogamous parents, serially monogamous parents or single parents. Section 293 targets only polygamous unions. This is arbitrary.

[1153]  Among the social harms the Attorneys General attribute to polygamy is a pool of unmarried men more prone to anti-social behaviour. Not only is this simply unconnected to the reality in Canada, but s. 293 does not criminalize the behaviour associated with multiple simultaneous conjugal relationships, only the agreement of the participants to treat the relationship as enduring. This, again, is arbitrary.

[1154]  The Attorneys General answer that in order to be found arbitrary, a law must bear no relation to, or be inconsistent with, the state’s legitimate objective. The objective of s. 293 is to reduce polygamy and its attendant social harms. The provision thus clearly bears a relation to that objective.

[1155]  They further respond that all of the challengers’ arguments with respect to arbitrariness are essentially re-articulations of two assertions: first, that polygamy does not cause harm; and second, if it does cause harm, its criminal prohibition is ineffective at reducing polygamy.

[1156]  As the evidence amply establishes that polygamy does cause harm, the only question is whether s. 293 is effective at deterring or reducing polygamy. However, effectiveness is not an appropriate consideration here; rather, it is a factor to consider when assessing rational connection under the Oakes analysis under s. 1.

iii.              Gross Disproportionality

[1157]  This principle of fundamental justice precludes legislative measures that are so extreme that they are per se disproportionate to any legitimate government interest.

[1158]  The Civil Liberties Association offers the most detailed submissions amongst the challengers on this issue. It argues that s. 293 is so poorly calibrated to the prevention of harm, albeit a legitimate state interest, that it “utterly tramples the rights those consenting adults who, for reasons of personal conscience, family orientation or religious belief, find their conception of the good in a plural relationship” (at para. 106).

[1159]  The Civil Liberties Association says it is reasonable to conclude that s. 293 was introduced to avoid harm from conduct believed to be anti-social and thus incompatible with the proper functioning of society. While valid, this objective is not only abstract but it is also firmly rooted in Victorian conceptions of morality, which are out of step with Canada’s contemporary legal culture and social reality.

[1160]  Weighed against this is the fact that Parliament has criminalized plural relationships between consenting adults. The infringement for those who find fulfillment in plural relationships is deep. The evidence establishes that plural relationships are not inherently harmful, though, much like monogamous relationships, some can be difficult or even abusive. The evidence also establishes that those affected live under the weight of bias, stigma, prejudice and fear arising from criminalization of their conduct.

[1161]  The Civil Liberties Association argues that the extent of the disproportionality is apparent when one compares Parliament’s response to polygamy to that of criminal indecency, an offence traditionally justified by reference to the state’s interest in protecting national morality.

[1162]  In R. v. Labaye, 2005 SCC 80, the Supreme Court held that for conduct to be held indecent at law, it must be demonstrated to be “conduct that can be objectively shown beyond a reasonable doubt to interfere with the proper functioning of society”, meaning conduct that “not only by its nature but also in degree, rises to the level of threatening the proper functioning of our society” (at paras. 52 and 56).

[1163]  In contrast, plural relationships are not judged on their merits but are criminal simply by coming into existence.

[1164]  The FLDS agrees that the imposition of criminal sanctions, including imprisonment, upon members who have not committed any offence other than being in a polygamous marriage is not only grossly disproportionate to the state objectives of protecting women, children and social harmony, but is directly contrary to those objectives. Section 293 ensures insularity and fear of authority, thereby reducing the ability of those within the community to report legitimate abuses of women or children. It also has the effect of marginalising FLDS members in the wider community.

[1165]  The Attorneys General contend otherwise. Parliament’s use of a criminal prohibition that includes the possibility of incarceration but has no mandatory minimum sentence is not a legislative response so extreme as to be disproportionate to its legitimate interest in preventing the harms associated with polygamy:

a)    It is sufficient that there exist cases in which incarceration would be a fit sentence for a breach of s. 293. Because the provision does not impose any mandatory minimum sentence, any question of unconstitutional disproportionality must be addressed through Charter-compliant sentencing in a given case.

b)    The fact that Parliament has addressed some of the harms associated with polygamy through the enactment of other criminal prohibitions does not foreclose its ability to prohibit the practice itself. This is especially the case where a narrower prohibition would be ineffective in responding to the harms caused by the practice.

c)     The challengers’ argument regarding the consequential impacts of criminalization (i.e., marginalization of polygamous communities) is not a consideration that belongs in the gross disproportionality analysis; rather, it is a consideration more properly reserved for s. 1: Malmo-Levine (at para. 181).

iv.              Consent

[1166]  For the purposes of s. 7, a principle of fundamental justice is a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate. The principle must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person: Malmo-Levine (at para. 113).

[1167]  The Amicus submits that there is support in both judicial authorities and academic commentary for the inclusion of consent, as a defence to criminal liability, as a principle of fundamental justice.

[1168]   Though not a Charter decision, the Supreme Court undertook a thorough analysis of the principle of consent in R. v. Jobidon, [1991] 2 S.C.R. 714, where the issue was whether a consensual fist-right resulting in the death of one of its participants constituted assault.

[1169]  Consent was subsequently applied as a principle of fundamental justice in R. v. C.M. (1992), 75 C.C.C. (3d) 556 (Ont. CJ. (Gen. Div.), where the court considered whether the prohibition of anal intercourse except by consenting adults over the age of 18 was consistent with s. 7. Justice Corbett concluded that denying the defence of consent of complainants between 14 and 18 in those circumstances infringed the accused’s right to liberty in violation of the principles of fundamental justice.

[1170]  Section 293 stands in marked contrast to this principle. The Amicus submits that like the prohibition against anal intercourse, the prohibition against polygamy criminalizes private activity which is not inherently harmful and to which the parties have consented. Not only does s. 293 fail to recognize consent as a defence, but the act of consenting is impliedly made an element of the offence.

[1171]  The Attorneys General disagree.

[1172]  They respond that the Amicus falls far short of establishing a significant societal consensus as required, particularly when the Supreme Court in Malmo-Levine rejected the harm principle as a principle of fundamental justice for the purposes of s. 7. The Court observed that there are activities that are legitimately prohibited even though undertaken by consenting adults, citing duels, fist fights and incest.

[1173]  The Attorneys General further say that to the extent it is a legal principle at all, consent can have no application to offences that have broader social harms. Incest and obscenity are analogous examples. The consent of the participants to criminal activity is irrelevant, and their interests in making autonomous decisions about the number of people to marry must give way to the plethora of compelling societal interests, including those of any children within the family who are unable to “consent” to their situation.

v.               Vagueness

[1174]  Although none of the challengers specifically raise vagueness, the AG Canada addresses it in his submissions. In short, he says that s. 293 is not unconstitutionally vague.

[1175]  The threshold for finding a law vague is exceedingly high. A law will only be found to be vague where it is so unintelligible that it fails to provide an adequate basis for legal debate. As the Supreme Court explained in Nova Scotia Pharmaceutical Society, in making that determination the court must interpret the law, not in the abstract, but within a larger interpretive context developed through an analysis of considerations such as purpose, subject-matter and nature of the impugned provision, societal values, related legislative provisions and prior judicial interpretations.

[1176]  The AG Canada submits that s. 293, properly interpreted, prohibits multiple marriages. It has also proven itself capable of judicial interpretation; for example, by the Ontario Court of Appeal in Tolhurst.

2.               Conclusion

[1177]  The analysis begins with identifying the s. 7 interest properly at stake. The Court then considers whether there has been a deprivation of that protected interest, and whether that deprivation is in accordance with the principles of fundamental justice.

[1178]  There is no doubt that s. 7 is triggered here in light of the potential for imprisonment under s. 293. I also accept the challengers’ submissions, based on the Supreme Court of Canada’s decision in Malmo-Levine (and the authorities summarized at para. 85 of the judgment), that liberty interests are engaged because the choice of family arrangement in this context is within that “irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference”.

[1179]  The Civil Liberties Association submits that security of the person is also engaged because s. 293, by criminalizing plural marriage, produces a constitutionally cognizable level of psychological stress for individuals living in plural relationships. As I later discuss, it is my view that the reasoning in Malmo-Levine disposes of this submission and I do not accept it.

[1180]  That takes us to the second stage of the analysis. The challengers point to these principles of fundamental justice offended by s. 293: arbitrariness, overbreadth and gross disproportionality. The Amicus also raises consent as a relevant principle.

[1181]  Much of the force of the challengers’ arguments with respect to s. 7 rests on two related premises: first, that, as the Amicus states at para. 610 of his Final Submissions, “polygamy is plainly not harmful in and of itself”; and, second, that consensual and harmless adult polygamous unions exist.

[1182]  But I have concluded quite the contrary. The Attorneys General have demonstrated a reasoned basis for the apprehension that polygamy (especially polygyny) is inherently harmful to the participants, to their offspring and to society generally.

[1183]  This conclusion undercuts many of the challengers’ submissions with respect to s. 7.

[1184]  It is not necessary for me to decide whether consent as a defence to criminal liability rises to the level of a principle of fundamental justice, a proposition the Attorneys General dispute. Even if it did, the principle could only apply where the “victim” of the offence consented. In the case of polygamy, the risks of harm associated with the practice extend beyond the immediate participants to those who are not in a position to give their consent. The children of a polygamous union, as just one example, cannot consent to their situation, which includes exposure to the increased risk of harms that flow from their parents’ marital relationship.

[1185]  Thus, even if a principle of fundamental justice, consent would have no application here.

[1186]  I turn next to overbreadth.

[1187]  The Supreme Court of Canada explained overbreadth in Heywood (at 792-793):

Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

[1188]  I have addressed Parliament’s objective in enacting s. 293 at length already. Very simply stated, it is to prevent the many harms associated with polygamy. The question, then, is whether the blanket prohibition of polygamy imposed by s. 293 is broader than necessary to accomplish this legitimate objective.

[1189]  Given the breadth of polygamy’s perceived harms, it is my view that it is not, with one exception that I will address shortly.

[1190]  The challengers point to the criminalization of all polygamous unions irrespective of harm as indicative of overbreadth. My conclusion that there is a reasoned apprehension that polygamy is inherently harmful to the participants, to their offspring and to society answers this submission.

[1191]  Next, the challengers say that criminal laws that specifically target the harms that arise in some plural unions already exist and obviate the need for s. 293.

[1192]  The fact that Parliament can (and has) addressed some of the discrete harms that have been found to arise in some polygamous relationships, for example, through laws against sexual exploitation and sexual assault, does not prevent Parliament from promulgating the criminal prohibition against polygamy itself.

[1193]  An analogous argument was advanced in Sharpe with respect to possession of child pornography. The claimant argued that to the extent the exploitation of children in the manufacture of child pornography was the concern, it was addressed through laws targeting that activity and that the law against possession was unnecessary. Chief Justice McLachlin disagreed (at para. 93):

[A]n effective measure should not be discounted simply because Parliament already has other measures in place. It may provide additional protection or reinforce existing protections. Parliament may combat an evil by enacting a number of different and complementary measures directed to different aspects of the targeted problem: see, e.g., R. v. Whyte, [1988] 2 S.C.R. 3. Here the evidence amply establishes that criminalizing the possession of child pornography not only provides additional protection against child exploitation - exploitation associated with the production of child pornography for the market generated by possession and the availability of material for arousal, attitudinal change and grooming - but also reinforces the laws criminalizing the production and distribution of child pornography.

See also Malmo-Levine (at para. 137).

[1194]  Further, the other discrete offences do not “occupy the field” of harms associated with polygamy as an institution.

[1195]  Finally, and importantly, it is legitimate for Parliament to act proactively to prevent the occurrence of harm. The structure of polygamy creates conditions that increase the risk that the other offences identified by the challengers may occur. Parliament is entitled to take preventative measures and is not limited to reacting once harm occurs.

[1196]  The challengers also urge that s. 293’s overbreadth is starkly demonstrated by the fact that it criminalizes all participants in the illegal union, including the “victims” (overwhelmingly, the multiple women).

[1197]  I question whether the capable consenting spouse is a “victim”. To the contrary, she can be seen to be facilitating an arrangement which Parliament views as harmful to society generally.

[1198]  It is, in any event, constitutionally permissible for the state to attempt to deter vulnerable people from self-harm by criminalizing the harmful conduct. As the majority explained in Malmo-Levine (at para. 124):

We do not accept the proposition that there is a general prohibition against the criminalization of harm to self. Canada continues to have paternalistic laws. Requirements that people wear seatbelts and motorcycle helmets are designed to "save people from themselves". There is no consensus that this sort of legislation offends our societal notions of justice. Whether a jail sentence is an appropriate penalty for such an offence is another question. However, the objection in that aspect goes to the validity of an assigned punishment - it does not go to the validity of prohibiting the underlying conduct. [Emphasis added.]

[1199]  There is one limited respect in which I find that s. 293 goes further than necessary in pursuit of the legislative objective, and that is in exposing young persons under the age of 18 who are parties to illegal unions to criminal prosecution.

[1200]  “Every one” in s. 293 brooks no exception and includes such individuals within its purview. As the evidence on this reference demonstrates, however, these young person are victims in the true sense of the word. Indeed, I have found protecting children from the harms of polygamy to be one of the objectives of s. 293. To subject them to criminal sanction is contrary to that objective.

[1201]  While tempting, it is no answer to this infirmity to say that we can rely on prosecutorial discretion and common sense to ensure that these victims will not be prosecuted. As Cory J. observed in R. v. Bain, [1992] 1 S.C.R. 91 (at 104), albeit in a slightly different context, “[t]he protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control”.

[1202]  My concern is with the application of s. 293 to young persons. By that I mean persons between the ages of 12 and 17. The Criminal Code does not apply to a child under 12 by operation of s. 13. The Code applies with full force and without the accommodations of the Youth Criminal Justice Act at 18. The latter statute reflects the principle of fundamental justice that young persons are entitled to a presumption of diminished moral blameworthiness (R. v. D.B., 2008 SCC 25 (at para. 68)), a proposition supported by art. 40(1) of the Convention on the Rights of the Child. Article 1 of the Convention defines a child as below the age of 18 unless under the law applicable to the child, majority is attained earlier.

[1203]  To be clear, s. 293 is not overbroad in its application to persons 18 years of age or older at the time of the laying of the Information in respect of conduct that occurred at or after 18 years of age.

[1204]  The Supreme Court recognized in Heywood that “[t]he effect of overbreadth is that in some applications the law is arbitrary or disproportionate” (at 793). That is the case here. The effect of s. 293’s overbreadth is that it is arbitrary in its application to young persons who are parties to an illegal union.

[1205]  I emphasize that the arbitrariness of s. 293 in this limited respect is a function of its overbreadth. I do not consider the provision to be arbitrary in the sense described in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, and more recently in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 [PHS Community Services].

[1206]  In this latter decision, the Supreme Court noted that the jurisprudence on arbitrariness is not entirely settled. As the Court in PHS Community Services explained, in Chaoulli, three justices preferred an approach that asked whether a limit was “necessary” to further the state objective. At paras. 131 - 132 of Chaoulli, those justices noted:

In order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The onus of showing lack of connection in this sense rests with the claimant. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair. The more serious the impingement on the person's liberty and security, the more clear must be the connection. Where the individual's very life may be at stake, the reasonable person would expect a clear connection, in theory and in fact, between the measure that puts life at risk and the legislative goals.

In Morgentaler, Beetz J., Estey J. concurring, found that the limits on security of the person caused by rules that endangered health were "manifestly unfair" and did not conform to the principles of fundamental justice, in reasons that invoke arbitrariness. Some of the limitations bore no connection to Parliament's objectives, in his view, while others were unnecessary to assure that those objectives were met (p. 110).

[1207]  The other three justices preferred to avoid the language of necessity and instead approved of the prior articulation of arbitrariness in Rodriguez as where a deprivation of a right, “bears no relation to, or is inconsistent with, the objective that lies behind the legislation” (at 619 - 620).

[1208]  The Court in PHS Community Services found it unnecessary to determine which approach should prevail because the government action in question satisfied both definitions of arbitrariness.

[1209]  Conversely, I do not consider s. 293 to be arbitrary on either articulation of the test. The blanket criminalization of polygamy is necessary to further Parliament’s objective of preventing the many harms associated with its practice for the reasons I have already discussed. As such, it cannot be said that the deprivation of the liberty interests in question “bears no relation to, or is inconsistent with, the objective that lies behind the legislation”.

[1210]  Many of the challengers’ submissions on arbitrariness are similar to those on overbreadth, and I have addressed them already.

[1211]  The challengers also say that there is no differentiation on the evidence between the harms said to be suffered by children of polygamous parents and those of abusive monogamous, serially monogamous or even single parents, yet s. 293 criminalizes only polygamous unions. Thus, they say, it is arbitrary. As Malmo-Levine holds in language that is apposite here (at paras. 139-140):

However, if Parliament is otherwise acting within its jurisdiction by enacting a prohibition on the use of marihuana, it does not lose that jurisdiction just because there are other substances whose health and safety effects could arguably justify similar legislative treatment. To hold otherwise would involve the courts in not only defining the outer limits of the legislative action allowed by the Constitution but also in ordering Parliament’s priorities within those limits. That is not the role of the courts under our constitutional arrangements.

Parliament may, as a matter of constitutional law, determine what is not criminal as well as what is. The choice to use the criminal law in a particular context does not require its use in any other: RJR-MacDonald, supra, at para. 50. Parliament’s decision to move in one area of public health and safety without at the same time moving in other areas is not, on that account alone, arbitrary or irrational.

[1212]  I conclude that s. 293 is not arbitrary as that fundamental principle of justice has been elucidated in the authorities.

[1213]  That brings us to the issue of gross disproportionality. Malmo-Levine sets out the test (at para. 143):

In short, after it is determined that Parliament acted pursuant to a legitimate state interest, the question can still be posed under s. 7 whether the government’s legislative measures in response to the use of marihuana were, in the language of Suresh, “so extreme that they are per se disproportionate to any legitimate government interest” (para. 47 (emphasis added)). As we explain below, the applicable standard is one of gross disproportionality, the proof of which rests on the claimant.

[1214]  Avoidance of harm is a legitimate state interest and in respect of polygamy, the state has demonstrated a reasoned apprehension of harm well beyond the de minimus threshold. Thus, the question is whether the use of a criminal prohibition that includes the possibility of incarceration is a legislative response that is so extreme that it is disproportionate to this state interest.

[1215]  The Attorneys General say, and I agree, that because there is no minimum sentence for polygamy, any question of unconstitutional disproportionality must be addressed through sentencing in any given case. In Malmo-Levine, the accused asserted that the mere possibility of imprisonment associated with the prohibition on possession of marijuana was grossly disproportionate. In rejecting this submission, the majority stated (at paras. 164-165):

The requirement of proportionality in sentencing undermines rather than advances the appellants’ argument. There is no need to turn to the Charter for relief against an unfit sentence. If imprisonment is not a fit sentence in a particular case it will not be imposed, and if imposed, it will be reversed on appeal.

There is no plausible threat, express or implied, to imprison accused persons - including vulnerable ones - for whom imprisonment is not a fit sentence.

[1216]  It is not difficult to conceive of circumstances in which a custodial sentence would be a fit sentence for a conviction for polygamy.

[1217]  Thus, the penalty that attaches to the offence in this case does not give rise to a finding of unconstitutionality.

[1218]  Having said that, the primary argument being advanced here by the challengers appears to be based on s. 293’s broader effects, as also recognized in Malmo-Levine (at para. 169):

We thus accept that the principle against gross disproportionality under s. 7 is broader that the requirements of s. 12 [of the Charter] and is not limited to a consideration of the penalty attaching to conviction. Nevertheless the standard under s. 7, as under s. 12, remains one of gross disproportionality. In other words, if the use of the criminal law were shown by the appellants to be grossly disproportionate in its effects on accused persons, when considered in light of the objective of protecting them from the harm caused by marihuana use, the prohibition would be contrary to fundamental justice and s. 7 of the Charter.

[1219]  The challengers say that criminalizing plural relationships between consenting adults is an extraordinarily deep intrusion into personal liberty and a grossly disproportionate response to addressing either the abstract objective of preventing harm (the Civil Liberties Association) or the social and indirect harms said to be associated with the practice (the Amicus). The result is that those affected live under the weight of bias, stigma, prejudice and fear arising from the criminalization of their conduct.

[1220]  To the extent this submission is premised on the notion that polygamy is not inherently harmful, I do not credit that notion for the reasons I have already stated. Further, the risks of the social harms associated with polygamy are sufficiently serious that criminalizing all polygamous marriages is not, in my view, a disproportionate response to Parliament’s objective of preventing harm.

[1221]  Finally, there is the submission that the polygamy prohibition’s effects on accused persons are grossly disproportionate to the state interest because the prohibition is simply ineffective ? indeed, it exacerbates the potential for harm by driving its practitioners underground in isolation. I respond with the Court’s statement in Malmo-Levine (at para. 177):

This Court has exercised caution in accepting arguments about the alleged ineffectiveness of legal measures:  see Reference re Firearms Act (Can.), supra, where the Court held that “[t]he efficacy of a law, or lack thereof, is not relevant to Parliament’s ability to enact it under the division of powers analysis” (para. 57). While 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.

[1222]  The standard is gross disproportionality and the Court in Malmo-Levine concluded (at para. 175) as I conclude: “the effects on accused persons of the present law, including the potential of imprisonment, fall within the broad latitude within which the constitution permits legislative action.”

[1223]  Section 293 is not grossly disproportionate.

[1224]  Before I leave the s. 7 analysis, I should touch on the issue of vagueness. As I have said, none of the challengers specifically raised vagueness, though the AG Canada did address it in his submissions.

[1225]  I have noted the concern above in the context of Dr. Drummond’s writing. I began this analysis by interpreting the scope of s. 293. That exercise demonstrates (as other courts have as well) that the prohibition is not so unintelligible that it fails to provide an adequate basis for legal debate. It is not unconstitutionally vague.

[1226]  In sum, for these reasons, I have concluded that s. 293 is overbroad with respect to its application to children between the ages of 12 and 17 and therefore contrary to s. 7 of the Charter. It is not arbitrary or grossly disproportionate.

E.               Equality

1.               Positions of the Parties

[1227]  Section 15 of the Charter guarantees equality:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[1228]  The jurisprudence establishes a two-part test for assessing a s. 15(1) claim:

a)    Does the law create a distinction that is based on an enumerated or analogous ground?

b)    Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

(Withler v. Canada (Attorney General), 2011 SCC 12 at para. 30, citing R. v. Kapp, 2008 SCC 41 at para. 17.)

[1229]  The Amicus asserts that s. 293 violates the equality guarantee on the basis of both religion and marital status.

a)               On the ground of religion

[1230]  The Amicus’ s. 15 claim on the ground of religion parallels much of his s. 2(a) claim. Section 293, he says, violates the equality of fundamentalist Mormons, Muslims and Wiccans by criminalizing a sincerely-held religious practice, thus “ridiculing” their beliefs that it can be a link to the divine.

[1231]  A second aspect of the Amicus’ religious discrimination claim is that s. 293 demeans religious minorities by treating the religious practice of polygamy in a manner inconsistent with the accommodations afforded mainstream religions.

[1232]  A number of the defenders, for instance, have criticised fundamentalist Mormons for their patriarchal beliefs, suggesting that such patriarchy is an inherent wrong of polygamy. Those same criticisms are not levelled at the Catholic Church, another religious tradition steeped in patriarchy.

[1233]  Similarly, the state is prepared to disregard religious marriages which the Catholic and Jewish faiths continue to view as binding despite a civil divorce; s. 293 has not been applied to members of these faiths. Yet, it is not prepared to grant the same accommodation to Mormon celestial marriage, and instead recognizes these religious marriages for the purposes of s. 293.

[1234]  The Attorneys General counter that the distinction s. 293 draws in prohibiting polygamy is not based on religion. There is nothing about polygamy that is inherently religious in nature; it is practiced throughout the world in customary, traditional and purely secular contexts.

[1235]  Nevertheless, to the extent that s. 293 does capture religiously motivated polygamy, the matter is best addressed under s. 2(a) where the jurisprudence has been carefully calibrated to the issues that arise when restrictions on religious liberty are raised: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 [Hutterian Brethren].

b)               On the ground of marital status

[1236]  The Amicus says that polygamy is a form of marital status and constitutes an analogous ground for the purpose of s. 15.

[1237]  The Supreme Court of Canada recognized marital status as an analogous ground in Miron v. Trudel, [1995] 2 S.C.R. 418, and Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325. In each case, the challenger was a common law partner who had been denied benefits available to married spouses. The form of conjugal relationship was thus the basis of discrimination.

[1238]  Section 293 discriminates on the basis of conjugal relationship in a similar fashion by distinguishing between the number of partners in a relationship: two is permissible, any more is not.

[1239]  The Amicus submits that the reasons of McLachlin J. (as she then was) in Miron confirm that being polygamous is properly an analogous ground. McLachlin J. found three markers which taken together, drove the conclusion that marital status was an analogous ground: (1) it touches upon the essential dignity and worth of the individual; (2) persons involved in unmarried relationships constitute a historically disadvantaged group; and (3) marital status often lays beyond an individual’s effective control.

[1240]  According to the Amicus, polygamy bears each of these markers.

[1241]  For participants, their polygamous relationships are central to their identities, dignity and sense of self-worth, just as any conjugal relationship is likely to be to its participants. For fundamentalist Mormons, polygamy is a fundamental spiritual principle through which they fulfil God’s plan. For polyamorists, the ability to live in a family with the people they love is essential.

[1242]  Polygamists are both a historically and presently disadvantaged group. Mormons have a history of persecution, particularly in the United States. Polygamy has been criminalized in Canada since 1890, and immigration legislation bars polygamists from entering the country. In the eyes of the law and much of society, polygamists are pariahs.

[1243]  Finally, whether one’s conjugal union is polygamous is oftentimes a matter over which an individual exercises only limited control. While polygamy is not immutable to the extent of sexual orientation, in Miron, McLachlin J. did observe in relation to common law relationships that “marital status often lies beyond the individual’s effective control” (at para. 73). With its religious and social drivers, polygamy is certainly more immutable than a common law relationship. That polygamists continue to engage in the practice despite criminalization is testament to its significance to them.

[1244]  The Attorneys General reject the proposition that polygamy is an analogous ground, and say the Amicus’ challenge fails at this first prong of the analysis.

[1245]  The Supreme Court described the rationale for the inclusion of a new characteristic as an analogous ground of discrimination in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 (at 219):

[T]he thrust of identification of analogous grounds ... is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law.

[1246]  On this basis, number of spouses simply cannot constitute an analogous ground. Indeed, it can no more be said that number of spouses is an analogous ground than it can be said that having a spouse who is a blood relative is an analogous ground, an argument rejected in R. v. M.S.

[1247]  While s. 293 does draw a distinction between those who practice polygamy and those who do not, it is not one based on impermissible stereotypes that undermine human dignity. To the contrary, it distinguishes between those who engage in harmful behaviour and those who do not. Section 293 is based on the prevention of harm to individuals and to society, one of the central purposes of criminal law.

[1248]  At the second stage of the Withler analysis - whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping - the Amicus argues that criminalization of polygamy amounts to substantive discrimination against polygamists. His submissions focus on three hallmarks of discrimination.

[1249]  First, polygamists have historically suffered disadvantage. Section 293 perpetuates and exacerbates this disadvantage by criminalizing them in respect of a matter that is profoundly important. Criminalization is society’s strongest message of opprobrium, and the legislative record is clear that Canada’s prohibition on polygamy was originally aimed at Mormons and First Nations, groups that already faced disadvantage.

[1250]  Second, s. 293 is the legal embodiment of stereotyping, as it is a sweeping condemnation of all polygamy without any sensitivity to the actual circumstances of any individual polygamous relationship. While the Attorneys General allege that polygamy is correlated to a number of harms, criminal liability under s. 293 simply does not depend on the existence of harm.

[1251]  Third, criminalization of polygamy is inconsistent with Canada’s treatment of other intimate and conjugal relations as a matter of privacy and individual choice.

[1252]  Beginning with the decriminalization of sodomy in 1969, Canadian society has increasingly viewed sex as a private matter to be interfered with only in cases of abuse. We have also come to recognize an increasing diversity in conjugal relationships. Against these developments, the continued penal prohibition of polygamy is anachronistic. Adultery, for instance, entails enormous costs; nevertheless, the law generally does not punish those who engage the practice. Nor does it not punish those who engage in group sex or “swinging” when conducted in private: Labaye.

[1253]  The Attorneys General reject the submission that polygamists are a historically disadvantaged group, arguing that most of the evidence is to the contrary. Across cultures, and including within the FLDS, polygamy is reserved for the relatively privileged and powerful men in society.

[1254]  Moreover, the fact that the practice of polygamy has, throughout history, been consistently associated with a set of harms and condemned accordingly does not make those who engage in the practice today part of a historically disadvantaged group.

[1255]  To similar effect, the enduring understanding that polygamy is harmful does not mean that the prohibition is based in any way on prejudice or stereotyping. As the evidence in this reference confirms, the generalization that polygamy is harmful is objectively true.

[1256]  The s. 15 analysis is both subjective and objective. The reasonable person fully apprised of the confirmed harms that have been empirically, internationally and historically associated with polygamy would not see s. 293 as based upon stereotypes, prejudice or otherwise demeaning to the dignity of polygamists. To the contrary, that reasonable person would be forced to recognize that the prohibition appropriately corresponds to the serious harms that are associated with polygamy in a manner that promotes the very interests that underpin s. 15.

[1257]  Section 293 is consistent with s. 15, which promotes human dignity and the values and principles essential to a free and democratic society. Those values include a commitment to social justice and equality, and faith in social and political institutions, such as monogamy, that enhance the participation of individuals and groups in society.

[1258]  As for the submission that polygamy is an immutable characteristic, the Attorneys General again disagree. There is no evidence that a predisposition toward polygamous marriage is anything more than how the expert psychologists described it, an advantageous strategy available to those with the inclination and resources to pursue it. Further, if willingness to pursue behaviour in the face of criminal prohibition constitutes immutability for s. 15 purposes, then a breach of equality would be found any time the state maintained a prohibition in the face of defiance.

2.               Conclusion

[1259]  I can dispense with the s. 15 claims quite briefly, starting with marital status.

[1260]  Assuming for the sake of argument that s. 293 creates distinctions on the basis of marital status, it fails the second prong of the analysis under Kapp since any such distinction does not create a disadvantage by perpetuating prejudice or stereotyping.

[1261]  Not every distinction, even if based on an enumerated or analogous ground, is discriminatory. As the Supreme Court of Canada explained in Withler (at para. 39):

Both the inquiries into perpetuation of disadvantage and stereotyping are directed to ascertaining whether the law violates the requirement of substantive equality. Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group.

[1262]  Any differential treatment that flows from s. 293 is not based on stereotypes with respect to particular marital forms (or, for that matter, particular religions). As I have discussed at length, polygamy has been condemned throughout history because of the harms consistently associated with its practice. Section 293 was not enacted for a discriminatory purpose but for the neutral object of protecting individuals and society more generally from these perceived harms. Indeed, to the extent that polygamy undermines the equality and dignity of women and children, s. 293 promotes the values that underlie the equality guarantee.

[1263]  In R. v. M.S., the claimant, a father who was charged with incest in relation to his adult daughter, argued that “his desire to have a consensual sexual relationship with a blood relative and to form a family through this relationship is a personal characteristic which has lead to discrimination because s. 155 of the Code prohibits such a relationship” (at para. 45).

[1264]  Justice Donald assumed without deciding that the claimant had met the first stage of the test, that is, a distinction resulting in a violation of one of the equality rights. In concluding that the distinction was not discriminatory, he wrote (at para. 50):

In deciding whether a distinction is discrimination under s. 15(1) we must examine the questioned law in the larger social, political and legal context because “[i]f the larger context is not examined, the s. 15 analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation”: Turpin at p. 1332. Viewed in that context, the evidence in this case demonstrates that the law makes a relevant, rational distinction concerning sexual choice, between those who would have sex with their daughter and those who would not. The personal attribute which the appellant says leads to discrimination goes to the very reason for the law: it is the proclivity to engage in behaviour that exploits the child, harms the well-being of the family and hence the community, and genetically endangers the offspring of the relationship.

[1265]  Parallel reasoning applies to s. 293, which draws a relevant, rational distinction on the basis of a marital form which creates, at least a risk of, if not actual, harm.

[1266]  There is an argument that Parliament has also drawn a distinction on the basis of marital status by criminalizing only polygamists even though polyamorists (or others in multi-party unions who do not come within the ambit of s. 293 as I have interpreted it) engage in similar conduct. Again, the distinction between the two groups is not one based on stereotypes but, rather, on harm, in particular in this scenario, harm to the institution of monogamous marriage.

[1267]  With respect to the religious discrimination claim, the Amicus concedes that it parallels much of his religious freedom claim. In that regard, the situation is similar to that which arose in Hutterian Brethren, where the appellant claimed a breach of religious liberty, and, for substantially similar reasons, religious discrimination under s. 15. The Court addressed the claim under s. 2(a) and not s. 15, writing (at para. 108):

Assuming the respondents could show that the regulation creates a distinction on the enumerated ground of religion, it arises not from any demeaning stereotype but from a neutral and rationally defensible policy choice. There is no discrimination within the meaning of Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, as explained in Kapp. The Colony members’ claim is to the unfettered practice of their religion, not to be free from religious discrimination. The substance of the respondents’ s. 15(1) claim has already been dealt with under s. 2(). There is no breach of s. 15(1).

[1268]  For the reasons just discussed, the same outcome with respect to discrimination prevails here. The substance of the Amicus’ s. 15(1) religious discrimination claim has been dealt with in my treatment of the s. 2(a) claim and in the justification analysis under s. 1 to follow.

[1269]  I find no breach of s. 15(1) of the Charter.

[1270]  Having concluded that s. 293 violates both religious liberty as guaranteed by s. 2(a) and the s. 7 liberty interests of children under 18, I turn to consider whether that violation can be justified under s. 1 of the Charter.

F.               Section 1

[1271]  Section 1 of the Charter provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[1272]  The burden thus rests upon the Attorneys General to establish on a balance of probabilities that s. 293 constitutes a reasonable limit on the rights and freedoms protected by s. 2(a) and 7.

[1273]  The relevant analytical framework was set out in Oakes, as recently summarized in Hutterian Brethren. The analysis proceeds through these steps:

a)    Is the purpose for which the limit is imposed pressing and substantial?

b)    Are the means by which the goal is furthered proportionate?

i.       Is the limit rationally connected to the purpose?

ii.      Does the limit minimally impair the Charter right?

iii.    Is the law proportionate in its effect?

[1274]  Section 1 also requires the Court to satisfy itself that the measure in question is “prescribed by law” before this proportionality analysis is undertaken.

[1275]  As legislation passed by Parliament in accordance with federal constitutional authority, s. 293 of the Criminal Code is a limit prescribed by law as required by s. 1.

1.               Positions of the Parties

[1276]  The Attorneys General contend that s. 293 is amply justified under s. 1.

[1277]  The challengers argue that s. 293 has fatal weaknesses at every stage of the analysis.

a)               Pressing and Substantial Objective

[1278]  The Attorneys General submit there can be no question that the prevention of harm to individuals and to society is an objective that is pressing and substantial. This objective was pressing and substantial when the provision was first enacted and remains so today.

[1279]  The Attorneys General say that international human rights law and international trends confirm that preventing the harms that flow from polygamy is a pressing and substantial objective.

[1280]  Canada’s international treaty obligations, particularly under CEDAW and the ICCPR, include a duty to take all appropriate measures to eliminate discrimination against women. As part of this duty, the treaty bodies have encouraged member states to abolish polygamy.

[1281]  Similarly, the international trend among nations, particularly those to which Canada would invite comparison, is to increasingly restrict polygamy through measures that include criminalization.

[1282]  The Amicus concedes that the objective of protecting individuals from harm is meritorious. However, he disputes that deterring the alleged social harms of polygamy is a pressing and substantial objective. In this regard, he argues (at paras. 621 - 624):

The second objective advanced by the Attorneys is to protect society from harms caused by polygamy.

The theory upon which the Attorneys rely was advanced by Professor Henrich. It is that polygamy generally manifests as polygyny, and so imposes on society a “cruel arithmetic” that creates a pool of unmarried men, who are more prone to anti-social behaviour. It also thereby creates more competition for women. While from an economic perspective such higher competition might be expected to be empowering for women, proponents of this theory suggest that it leads to the earlier sexualization of girls, along with greater social dominance by men. This “cruel arithmetic” theory is said to lead to a host of social ills, including more crime, earlier sexualization of girls, lower levels of education, fewer civil liberties, even (according to Professor McDermott) greater national spending on defence.

Certainly the protection of society against harms like these, to the extent they may exist, is pressing and substantial, but that is not the real question. The true analysis must focus on whether the avoidance of the “cruel arithmetic” justifies s. 293’s grave intrusions into Charter rights. It is important to keep in mind just what this cruel arithmetic theory is attempting to justify: that everyone who enters into a conjugal union with more than one other person be subject to penal sanction, not because of some harm they have directly inflicted upon someone else, but rather because the gender arrangement of their intimate and personal conjugal union has to some degree skewed the gender ratio among unmarried persons in the rest of the population such that unmarried men may be more prone to anti-social behaviour. On that basis (the Attorneys General say), s. 293 imposes penal liability. The harms alleged are impossibly remote from the criminalized act, and this supposed moral gravamen of the crime is entirely indiscernible at the point of its commission.

For the cruel arithmetic theory to come anywhere close to justifying the Charter breaches, therefore, the pool of unmarried men must constitute the gravest social concern. As discussed above and further below, it simply is not. Nor does polygamy contribute to that pool in any significant way. And nor should it be expected to if it were decriminalized. They theory is ungrounded speculation, utterly detached from reality.

[1283]  The Amicus’ submissions on this point touch both upon whether s. 293’s objective is pressing and substantial, and whether its benefits outweigh its deleterious effects under the final stage of the Oakes analysis.

b)               Proportionality

i.                 Rational Connection

[1284]  The second step in the Oakes analysis requires an assessment of whether the infringing measure is rationally connected to the pressing and substantial objective it is said to serve. This requirement is satisfied where there is “a link or nexus based on and in accordance with reason, between the measures enacted and the legislative objective”: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (at para. 99) [Prostitution Reference].

[1285]  In Hutterian Brethren, the majority referred to the rational connection requirement, stating (at para. 48):

The rational connection requirement is aimed at preventing limits being imposed on rights arbitrarily. The government must show that it is reasonable to suppose that the limit may further the goal, not that it will do so.

[1286]  The rational connection test is not a particularly onerous one: Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2002 SCC 69 (at para. 228).

[1287]  The Attorneys General submit that criminalizing polygamy is rationally connected to the objective of reducing the harms associated with its practice. They say that while Parliament is not required to demonstrate that a criminal activity would have been more prevalent had it not been criminalized, the evidence on this reference is that s. 293 has functioned historically as a prophylactic and deterrent, and that, if upheld, it will continue to do so.

[1288]  Despite the arrival of Mormons in Canada in the late 1880s, the 1890 polygamy and bigamy laws, backed by threats of rigorous enforcement, prevented polygamy from gaining a foothold here as it had in the Utah Territory.

[1289]  In the United States, polygamy flourished in the Utah Territory until passage of federal anti-polygamy legislation. Enforcement of the polygamy ban in the late 19^th and early 20^th centuries eventually resulted in the complete abandonment of the practice by the mainstream Mormon Church.

[1290]  The Attorneys General submit that not only do reason and logic suggest that the incidence of polygamy would increase in a non-trivial way if it were decriminalized, but that considerable evidence exists regarding this point. For example, the evolutionary psychology evidence supports the notion that polygyny is an advantageous mating strategy for men who are able to afford it. Dr. Heinrich considered its non-trivial adoption “very plausible”. Dr. Walsh gave evidence that a large number of mainstream Mormons would embrace the practice if permitted, and Dr. Grossbard rejected the suggestion that polygyny could not catch on in a complex society such as Canada, citing the experience in France.

[1291]  The Amicus submits that a rational connection implies a measure of precision that is absent from s. 293. A rational law aimed at protecting women and children, for example, would target instances of harm caused to women and children; it would not criminalize those very women and children when they are parties to polygamous unions.

[1292]  The Amicus further argues that the existence of constitutionally valid laws that address any harms that may arise in a particular polygamous union vividly illustrate the disconnect between s. 293 and actual harm.

[1293]  The Amicus disputes the assertion that s. 293 has kept polygamy in check, pointing to the fact that prior to its attempted use against Mr. Blackmore and Mr. Oler a few years ago, the provision had been dormant since 1937. The rare application of s. 293 approximates having no criminal prohibition at all, yet very few people in Canada engage in polygamy.

[1294]  The Amicus submits that we should not expect there to be an uptake in the incidence of polygamy if s. 293 were to be repealed. Dr. Henrich’s evidence in this regard is pure speculation. Moreover, the suggestion that Canadians would enter into polygamous relationships in the absence of a criminal prohibition ignores the cultural, demographic and economic realities of Canada.

[1295]  The Amicus additionally maintains that with respect to religiously motivated polygamy, criminalization is not an effective deterrent. A number of the fundamentalist Mormon witnesses gave evidence that they entered into plural marriages knowing it was against the law. Historically as well, 19^th century prosecutions for Mormon polygamy in the United States did not end the practice but simply drove it underground. The criminal prohibition was accompanied by increasingly draconian measures against the Church and its members; thus, it cannot be said that the criminal prohibition itself was the basis for the abandonment of the practice by the mainstream Mormon Church.

[1296]  The FLDS also rejects s. 293 as being rationally connected to the objective of avoiding the harms alleged to flow from polygamy. They do so on the basis that polygamy per se does not cause harm. The evidence in this reference with respect to harm - including abuse of women and children, lower educational achievement and the problem of Lost Boys - relates to the practices of certain members of the FLDS. The evidenced harms are not a necessary or definitive aspect of polygamy, or even of fundamentalist Mormon polygamy.

[1297]  The FLDS further submits that many of the harms alleged to occur in a polygamous family also occur in other family structures, whether or not they exist in a closed, patriarchal religious community. It is not the form of marriage which is the predictor of harm but, rather, other unrelated factors which give rise to the risk of harm. Those behaviours are already the subject of existing laws and for those that are not, such as assigned or underage marriage, there is nothing prohibiting the enactment of valid, narrowly construed laws addressed to those harms.

[1298]  Indeed, the Amicus suggests that in light of the disturbing evidence regarding the FLDS practice of placement marriage, the AG Canada should consider criminalizing forced marriage, whether polygamous or monogamous. This is the kind of targeted measure that could permissibly be used to target actual harm, as opposed to marital status.

ii.               Minimum Impairment

[1299]  The legislative goal, if found to be pressing and substantial, grounds the minimum impairment analysis.

[1300]  Chief Justice McLachlin described the question to be addressed in Hutterian Brethren (at paras. 53-54):

The question at this stage of the s. 1 proportionality analysis is whether the limit on the right is reasonably tailored to the pressing and substantial goal put forward to justify the limit. Another way of putting this question is to ask whether there are less harmful means of achieving the legislative goal. In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives.

In RJR-MacDonald, the minimal impairment analysis was explained as follows, at para. 160:

As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement ... On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail [Emphasis added; citations omitted.]

[1301]  At para. 55, she added:

I hasten to add that in considering whether the government’s objective could be achieved by other less drastic means, the court need not be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure. In other words, the court should not accept an unrealistically exacting or precise formulation of the government’s objective which would effectively immunize the law from scrutiny at the minimal impairment stage. The requirement for an “equally effective” alternative measure in the passage from RJR-MacDonald, quoted above, should not be taken to an impractical extreme. It includes alternative measures that give sufficient protection, in all the circumstances, to the government’s goal: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350. While the government is entitled to deference in formulating its objective, that deference is not blind or absolute. The test at the minimum impairment stage is whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner.

[1302]  The Attorneys General stress that in assessing whether there are less harmful means of achieving the legislative goal, Parliament is entitled to deference. This is particularly so with respect to complex social issues where Parliament may be better positioned than the courts to choose among a range of alternatives. That is certainly the case here.

[1303]  The Attorneys General say that s. 293, as they interpret it, is narrowly focussed and minimally impairing. The prohibition does not restrict freedom of belief but only the ability to engage in a demonstrably harmful practice. This is important given the frequent reminder from the Supreme Court that “although the freedom of belief may be broad, the freedom to act upon those beliefs is considerably narrower”: Trinity Western (at para. 30); Children’s Aid Society of Metropolitan Toronto (at para. 226).

[1304]  Moreover, the Attorneys General argue that there is no evidence to suggest that any measure short of criminalization will be as effective as s. 293 at deterring individuals from practicing polygamy. The fact that the practice has, at times, flourished in Bountiful in the face of the criminal prohibition is clear evidence that any measure short of criminalization would logically be ineffective in deterring the practice. The evidence of Dr. Henrich and Dr. Shackelford about the natural tendency among humans towards polygamy further suggests that measures short of criminalization are unlikely to be effective in counteracting this deep seated cross-cultural phenomenon.

[1305]  The Amicus characterizes s. 293 as the antithesis of a minimally impairing section, describing it as “maximally impairing”. He and his allies submit that the plethora of constitutionally sound Criminal Code provisions that address the specific harms the defenders raise as relating to polygamy, firmly establishes that s. 293’s sweeping ban is not minimally impairing. They also say that to the extent there are unique problems associated with plural marriage, Parliament is able to craft laws to address those problems without imposing a blanket prohibition on the practice.

iii.              Proportionality of Effects

[1306]  The final stage of the proportionality analysis looks at whether the overall effects of the law on the claimants is disproportionate to the government’s objective.

[1307]  In Hutterian Brethren, McLachlin C.J.C. explained (at para. 76):

It may be questioned how a law which has passed the rigours of the first three stages of the proportionality analysis - pressing goal, rational connection, and minimum impairment - could fail at the final inquiry of proportionality of effects. The answer lies in the fact that the first three stages of Oakes are anchored in an assessment of the law’s purpose. Only the fourth branch takes full account of the “severity of the deleterious effects of a measure on individuals or groups”. As President Barak explains:

Whereas the rational connection test and the least harmful measure test are essentially determined against the background of the proper objective, and are derived from the need to realize it, the test of proportionality (stricto sensu) examines whether the realization of this proper objective is commensurate with the deleterious effect upon the human right ... It requires placing colliding values and interests side by side and balancing them according to their weight.

[1308]  This final stage of the analysis allows for a broader assessment of whether the benefits of the impugned provision are worth the cost of the rights limitation.

[1309]  In Hutterian Brethren, McLachlin C.J.C. also commented upon the extent to which the seriousness of a violation of religious liberty may vary (at para. 89):

There is no magic barometer to measure the seriousness of a particular limit on a religious practice. Religion is a matter of faith, intermingled with culture. It is individual, yet profoundly communitarian. Some aspects of a religion, like prayers and the basic sacraments, may be so sacred that any significant limit verges on forced apostasy. Other practices may be optional or a matter of personal choice. Between these two extremes lies a vast array of beliefs and practices, more important to some adherents than to others.

[1310]  The Attorneys General submit that the evidence suggests that insofar as Muslims are concerned, polygamy is purely optional. As such, it cannot be seriously argued that the interference with the individual’s freedom of religion is serious in such cases. The adherent is not faced with a stark choice between compliance with the dictates of his or her faith or compliance with the law.

[1311]  With respect to fundamentalist Mormons, the case is rather more complex, as there is evidence that, at least doctrinally, some individuals sincerely believe that they must practice polygamy as part of their religion. However, the evidence also suggests that many members of fundamentalist Mormon communities can, and do, choose to live monogamously without running afoul of their religious beliefs.

[1312]  Professor Campbell gave evidence that “while FLDS tenets indicate that plural marriage is a requirement for spiritual fulfilment, some residents of Bountiful currently see themselves as in a position [to] choose monogamy over polygamy. Those who choose monogamy still see themselves as FLDS followers, and suggest that their devoutness is reflected in their openness to the possibility of plural marriage” (Affidavit #2 at para. 18).  This evidence was confirmed by Anonymous Witness No. 2, who testified that not all FLDS members necessarily aspire to enter into the highest level of the celestial kingdom, and therefore choose not to marry polygamously.

[1313]  Further, Anne Wilde and Mary Batchelor no longer engage in polygamy themselves, despite being independent fundamentalist Mormons who advocate in favour of the practice.

[1314]  The Attorneys General say that this evidence suggests that even the most devout fundamentalist Mormons can comply with s. 293 while still adhering to their religious beliefs.

[1315]  In any event, to the extent that particular individuals sincerely believe that polygamy is a religious obligation, the impact of s. 293 on their religious freedom is outweighed by its countervailing salutary effects.

[1316]  The evidence demonstrates that polygamy is associated with very substantial harms.  The prevention of these harms is salutary. Some of the beneficial effects of the ongoing prohibition of polygamy include:

a)    Increased per-child parental investment, with the expected increase in the mental and physical wellbeing of children overall;

b)    Reduced social strife, conflict and crime expected from more uneven distribution of the opportunity to marry;

c)     Reduced average age gaps between husbands and wives, increasing equality in marriages;

d)    Reduction in sexual predation on young girls;

e)    Reducing incentives for male control over women and their reproductive capacity; and

f)      Consistency with Canada’s international treaty and legal obligations.

[1317]  The statistical evidence shows that as levels of polygamy increase in a society, there is a corresponding decrease in political and civil liberties. It is reasonable to assume that the decriminalization of polygamy would make Canada an attractive destination for polygamists from other countries, and there is no evidence that Canada would be immune from the impacts of such an influx.

[1318]  The prohibition of polygamy has been linked, both temporally and philosophically, with the rise of democracy and its attendant values of liberty and equality.

[1319]  The Amicus responds that s. 293 is a serious intrusion on civil liberties for little positive gain. He contends that s. 293:

a)    Criminalizes a religious practice, forcing those who would engage in it for the purpose of connecting with the divine to choose between obedience to the law and obedience to their consciences;

b)    Prohibits and condemns all polygamy irrespective of harm;

c)     Criminalizes all polygamists without inquiry into the circumstances of any particular relationship;

d)    Takes away freedom of choice with respect conjugal lives, a matter that is intensely private; and

e)    Denies polygamists the defence of consent, unlike almost every other criminal offence.

[1320]  The Amicus submits (at para. 655):

Ultimately, a fair assessment of s. 293’s constitutionality must account for these inescapable facts: that there exist many polygamous conjugal relationships that are comprised entirely of consenting adults, and which create happy, healthy and nurturing familial environments; that polygamy is sometimes pursued out of deep religious conviction; that, except in cases of coercion or abuse, polygamous conjugal relationships are of profound personal significance to their participants; and that s. 293 criminalizes every polygamous conjugal union and every polygamist.

[1321]  While the defenders of s. 293 point to its utility in deterring and punishing abuse, the Amicus says it has significant drawbacks that undermine its utility in this regard:

a)    As a prosecutorial tool, the provision has been of no value. There have been only two convictions in its 120 year history; neither involved an abusive polygamous relationship;

b)    A host of other criminal laws exist which target the abuse that can arise in any familial context, including polygamy;

c)     The criminalization of all polygamy, detached from any particularized harm within a particular relationship, causes polygamists to withdraw from mainstream society and polygamous communities to become more insular. The result is that investigation and prosecution of actual abuse becomes more difficult;

d)    Section 293 criminalizes a practice that is unlikely to be deterred. Unlike marijuana use in Malmo-Levine, polygamy engages fundamental interests. In a real and practical sense, conjugality is immutable; and

e)    Section 293 fails to accurately convey society’s denunciation. The conduct that calls out for moral condemnation is not polygamy per se, but the abuse that motivates the prosecution.

[1322]  The FLDS argues that since polygamy per se does not cause harm or the reasoned apprehension of harm, s. 293 has no salutary effects.

[1323]  Its deleterious effects on members of the FLDS, however, are numerous. It prohibits them from practicing a core element of their religion. It has the perverse effect of further isolating the community from mainstream society.

[1324]  The Attorneys General challenge some of the deleterious effects identified by the challengers. With respect to stigma and insularity, they point out that these are effects legitimately visited upon persons who violate the law. The court’s role in the s. 1 analysis is not to weigh the negative effects of criminalization, but the harms to the exercise of the Charter right(s) that have been infringed. Thus, the only deleterious effects appropriately considered are the consequences of obeying the law.

[1325]  The Attorneys General further argue that, in any event, the evidence does not bear out the assertion that s. 293 promotes marginalization, therefore reinforcing insularity in polygamous communities.

[1326]  The only polygamous community in Canada about which the Court has any evidence is Bountiful. That evidence suggests that the FLDS members who reside in the community perpetuate and cherish their insularity on the basis of an explicit disapproval of the values of mainstream Canadian society. This insularity would most likely persist without the prohibition on polygamy.

[1327]  The evidence of Professor Campbell was that a number of the women she interviewed in the Bountiful community said they were comfortable with the idea of accessing resources outside the community, such as medical assistance and social services support, and that they had in fact done so.

[1328]  If the nature of the exercise of an infringed right is itself distant from the values the Charter was designed to protect, the weight accorded to its infringement as a deleterious effect at the balancing stage is minimal, at best: R. v. Keegstra, [1990] 3 S.C.R. 697. To the extent that s. 293 captures only polygyny, the religious practice being defended is, in itself, discriminatory against women. As such, Charter values of equality and dignity are promoted to the extent the practice is curtailed.

2.               Conclusion

[1329]  Having found s. 293 to infringe both s. 2(a) and s. 7 of the Charter, I advance to apply the Oakes test to each infringement.

a)               Section 2(a)

[1330]  To constitute a justifiable limit on a right or a freedom, the objective of the impugned measure must advance concerns that are pressing and substantial in a free and democratic society.

[1331]  As I have concluded, s. 293 has as its objective the prevention of harm to women, to children and to society. The prevention of these collective harms associated with polygamy is clearly an objective that is pressing and substantial.

[1332]  The positive side of the prohibition which I have discussed - the preservation of monogamous marriage - similarly represents a pressing and substantial objective for all of the reasons that have seen the ascendance of monogamous marriage as a norm in the West.

[1333]  I reject the Amicus’ concentration on, and rather dismissive critique of, the harms associated with the so-called “cruel arithmetic” of polygamy. The existence of these harms has been demonstrated by the defenders.

[1334]  At the next stage of the analysis, the Court turns to determine whether there is a rational connection between the criminal prohibition of polygamy and Parliament’s pressing and substantial objective.

[1335]  Having found a reasoned apprehension that polygamy is associated with numerous harms, it follows that criminalizing the practice is one way of limiting those harms. As Chief Justice Lamer observed in the Prostitution Reference (at 1195):

Regulating or prohibiting the cause is at least one method of controlling its effects. A piece of legislation that proceeds upon such a premise does, in my view, exhibit a rational connection between the measures and the objective.

[1336]  The government need only show that “it is reasonable to suppose that the limit [on the right] may further the goal, not that it will do so” (Hutterian Brethren at para. 48). It is certainly reasonable to suppose that the limits on religious liberty that s. 293 imposes may further the objectives of the provision. The evidence that the incidence of polygamy would plausibly increase in a non-trivial way if not criminalized certainly makes this point.

[1337]  The Amicus suggests that s. 293 has not been effective, and points to the miniscule number of prosecutions over the provision’s 120 year history. The Supreme Court answered this submission in R. v. Lucas, [1998] 1 S.C.R. 439, where it rejected a similar argument with respect to s. 300 of the Criminal Code, the prohibition of defamatory libel (at 466):

The appellants argued that the provisions cannot be an effective way of achieving the objective. They contended that this was apparent from the fact that criminal prosecutions for defamation are rare in comparison to civil suits. However, it has been held that “[t]he paucity of prosecutions does not necessarily reflect on the seriousness of the problem”, rather it “might be affected by a number of factors such as the priority which is given to enforcement by the police and the Crown” (R. v. Laba, [1994] 3 S.C.R. 965, at p. 1007 (emphasis added)). There are numerous provisions in the Code which are rarely invoked, such as theft from oyster beds provided for in s. 323 or high treason in s. 46. Yet, the infrequency of prosecutions under these provisions does not render them unconstitutional or ineffective. I agree that the small number of prosecutions under s. 300 may well be due to its effectiveness in deterring the publication of defamatory libel (Stevens, supra, at p. 310).

[1338]  The Amicus also maintains that s. 293 is not an effective deterrent since those who are religiously motivated to practice polygamy will do so regardless of its criminalization. Again, the Supreme Court answered this submission in Malmo-Levine (at paras. 177-178):

This Court has exercised caution in accepting arguments about the alleged ineffectiveness of legal measures:  see Reference re Firearms Act (Can.), supra, where the Court held that “[t]he efficacy of a law, or lack thereof, is not relevant to Parliament’s ability to enact it under the division of powers analysis” (para. 57). While 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.

Questions about which types of measures and associated sanctions are best able to deter conduct that Parliament considers undesirable is a matter of legitimate ongoing debate. The so-called “ineffectiveness” is simply another way of characterizing the refusal of people in the appellants’ position to comply with the law. It is difficult to see how that refusal can be elevated to a constitutional argument against validity based on the invocation of fundamental principles of justice. Indeed, it would be inconsistent with the rule of law to allow compliance with a criminal prohibition to be determined by each individual’s personal discretion and taste. [Emphasis added]

[1339]  While the Supreme Court made these comments in the context of s. 7 of the Charter, in my view they have equal application to the rational connection analysis under s. 1.

[1340]  As for the suggestion that a more focussed measure, rather than a general prohibition of polygamy, is more rationally connected to the objective, I have dealt with this submission in my discussion of the s. 7 claim. Many of the conclusions there are apposite here and, in my view, answer the challengers’ submissions under this head.

[1341]  Moving to minimal impairment, it is my view that s. 293 minimally impairs religious freedom.

[1342]  In addressing the harms reasonably believed to be associated with polygamy - inherently I add - Parliament is entitled to some deference. This is a complex social issue. Parliament is better positioned than the Court to choose among a range of alternatives to address the harms.

[1343]  When one accepts that there is a reasoned apprehension that polygamy is inevitably associated with sundry harms, and that these harms are not simply isolated to criminal adherents like Warren Jeffs but inhere in the institution itself, the Amicus’ complaint that there are less sweeping means of achieving the government’s objective falls away. And it most certainly does when one considers the positive objective of the measure, the protection and preservation of monogamous marriage. For that, there can be no alternative to the outright prohibition of that which is fundamentally anathema to the institution. In the context of this objective, there is no such thing as so-called “good polygamy”.

[1344]  It is therefore my opinion that s. 293 is “carefully tailored so that rights are impaired no more than necessary” (RJR-MacDonald, at para. 160).

[1345]  Finally, I find s. 293 to be proportional in its effects.

[1346]   As Aharon Barak, former president of the Supreme Court of Israel, explained (in turn adopted by McLachlin C.J.C. in Hutterarian Brethren):

... the test of proportionality (stricto sensu) examines whether realization of this proper objective is commensurate with the deleterious effect upon the human right ... It requires placing colliding values and interests side by side and balancing them according to their weight.

[1347]  I start with the deleterious effects.

[1348]  I accept that for some, especially fundamentalist Mormons, the interference with a sincerely held belief represented by the prohibition in s. 293 is very significant. Still, I acknowledge the point made by the Attorneys General that some fundamentalist Mormons do choose to live monogamously without sacrificing their religious beliefs. And as we have seen, polygamy in Islam is not mandated, although it is permitted by the Qu-ran.

[1349]  Further, I accept that the prohibition tends for some to encourage isolationism and insularity.

[1350]  But, in my view, the salutary effects of the prohibition far outweigh the deleterious. The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times. It seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy.

[1351]  Finally, and not insignificantly, the prohibition is consistent with, and furthers, Canada’s international human rights obligations. In my view, this adds very significant weight to the salutary effects side of the balance.

[1352]  To the extent that s. 293 breaches the right guaranteed by s. 2(a) of the Charter, the Attorneys General have clearly met the burden of demonstrating that it is demonstrably justified in a free and democratic society.

b)               Section 7

[1353]  Laws which have been found to violate principles of fundamental justice are not easily saved by s. 1: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. As McLachlin C.J.C. explained “[t]he rights protected by s. 7 - life, liberty, and security of the person - are basic to our conception of a free and democratic society, and hence are not easily overridden by competing social interests” (at para. 66). Although she acknowledged that the task may not be impossible, it is nevertheless a hurdle that s. 293 is unable to overcome.

[1354]  My conclusions with respect to pressing and substantial objective and rational connection in the context of the s. 2(a) infringement apply equally here.

[1355]  However, it is at the minimum impairment stage that s. 293 fails the justification analysis, which is not surprising as its deficiency lies in its overbreadth.

[1356]  In criminalizing “every one” in a prohibited union, s. 293 includes within its ambit young persons who are parties to such unions. This serious impairment of young persons’ liberty interests does not advance the important objectives of s. 293. Even according Parliament a healthy measure of deference, it cannot be said that the measure, in this limited respect, is “carefully tailored so that rights are impaired no more than necessary” (RJR-MacDonald, at para. 160).

[1357]  Accordingly, I find that to the extent s. 293 is contrary to the principles of fundamental justice guaranteed by s. 7 of the Charter by criminalizing 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.

VIII.         DISPOSITION

[1358]  It remains then to answer the questions posed on the reference.

1.               Is Section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

[1359]  For the reasons I have given, s. 293 is consistent with the Canadian Charter of Rights and Freedoms except to the extent that 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.

[1360]  For greater clarity, as I have indicated in my reasons, the inconsistency does not extend to persons who marry into polygamy before the age of 18 but are 18 years of age or older at the time of the laying of the Information in respect of conduct that occurred at or after 18 years of age.

[1361]  Granting a constitutional remedy in light of that conclusion is not within the terms of this reference. If it were, I would respectfully adopt the approach taken by McLachlin C.J.C. in Sharpe, that is, confronted, as here, with a law that is substantially constitutional and peripherally problematic, one alternative is to read into the law an exclusion of the problematic application. Here, I would do so in respect of the noted group of potential accused persons.

[1362]  Alternatively, but to the same effect, I would read down “every one” in s. 293 to exclude the noted group of potential accused persons.

2.               What are the necessary elements of the offence in s. 293 of the Criminal Code of Canada? Without limiting this question, does s. 293 require that the polygamy or conjugal union in question involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?

[1363]  It is interesting to note that the primary question posed here speaks of the “necessary elements of the offence in s. 293...”. The singular is used. That sits well with my conclusion that the elements of the polygamy offence (s. 293(1)(a)(i)) and those of the conjugal union offence (s. 293(1)(a)(ii)) are the same:

1.       an identified person, who

2.       with the intent to do so,

3.       practices, enters into, or in any manner agrees or consents to practice or enter into,

4.       a marriage, whether or not it is by law recognized as a binding form of marriage, with more than one person at the same time.

[1364]  Section 293 does not require that the polygamy or conjugal union in question involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence.

[1365]  The parties did not in any substantial way deal with the offence created by s. 293(1)(b) of the Code and I have, accordingly, assumed that Question 2 is limited to the polygamy/conjugal union offence.

[1366]  It remains for the Court to thank counsel for the parties and the Interested Persons.

[1367]  Their submissions on the law, their development of the record before the Court, and their demonstrated professionalism throughout have made the timely, efficient and informed disposition of this matter possible and, as well, a rewarding exercise of the process contemplated under the CQA.

“The Honourable Chief Justice Bauman”

Appendix “A”

Materials Contained in Affidavit #1 of Kaley Isbister Sworn 30 July 2010

a.         Articles by Legal Academics

1.         Alberta Civil Liberties Research Centre, "Separate and Unequal: The Women and Children of Polygamy" in Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 2005);

2.         Bailey, Martha et al., "Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada" in Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 2005);

3.         Bailey, Martha et al., "Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada" (2009) 25 National Journal of Constitutional Law 83;

4.         Bailey, Martha, "Polygamy and Plural Marriage" (2007) 2:1 Les Ateliers de L'Ethique 18;

5.         Baines, Beverley, "Equality's Nemesis" (2006) 5 Journal of Law and Equality 57-80;

6.         Baines, Beverley, "Polygamy's Challenge: Women, Religion and the Post-Liberal State" (2007) 2:1 Les Ateliers de L'Ethique 23;

7.         Bala, Nicholas & Rebecca Jaremko Bromwich, "Context and Inclusivity in Canada's Evolving Definition of the Family" (2002) 16 International Journal of Law, Policy and the Family 145-180;

8.         Bala, Nicholas, "Controversy Over Couples in Canada: The Evolution of Marriage and Other Adult Interdependent Relationships" (2003) 29 Queen's Law Journal 41;

9.         Bala, Nicholas et al., "An International Review of Polygamy: Legal and Policy Implications for Canada" in Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 2005);

10.       Bala, Nicholas, "Why Canada's Prohibition of Polygamy Is Constitutionally Valid and Sound Social Policy" (2009) 25 Canadian Journal of Family Law 165;

11.       Berkowitz, Jason D., "Beneath the Veil of Mormonism: Uncovering the Truth About Polygamy in the United States and Canada" (2007) 38 University of Miami Inter-American Law Review 615

12.       Billie, Brieanne M., "The 'Lost Boys' of Polygamy: Is Emancipation the Answer?" (Fall 2008) 12:1 Journal of Gender, Race & Justice 127-152;

13.       Campbell, Angela, "How Have Policy Approaches to Polygamy Responded to Women's Experiences and Rights? An International, Comparative Analysis" in Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 2005);

14.       Campbell, Angela, “Wives’ Tales: Reflecting on Research in Bountiful” (2008) 23:1-2 Canadian Journal of Law and Society 121;

15.       Campbell, Angela, "Bountiful Voices" (2009) 47 Osgoode Hall Law Journal 183-234;

16.       Cook, Rebecca J. & Lisa M. Kelly, "Polygyny and Canada's Obligations under International Human Rights Law" (Ottawa: Department of Justice, 2006);

17.       D'Onofrio, Eve, "Child Brides, Inegalitarianism, and the Fundamentalist Polygamous Family in the United States" (2005) 19:3 International Journal of Law, Policy and the Family 373-394;

18.       Drummond, Susan G., "Polygamy's Inscrutable Secular Mischief” (2009) 5:1 CLPE Research Paper Series;

19.       Emens, Elizabeth F., "Monogamy's Law: Compulsory Monogamy and Polyamorous Existence" (2004) 29 New York University Review of Law & Social Change 277-376;

20.       Gillett, Todd M., "The Absolution of Reynolds: The Constitutionality of Religious Polygamy" (2000) 8 William & Mary Bill of Rights Journal 497-534;

21.       Guggenheim, Martin, "Texas Polygamy and Child Welfare" (2009) 46:3 Houston Law Review 101-151;

22.       Han, Erin L. "Legal and Non-Legal Responses to Concerns for Women's Rights in Countries Practicing Female Circumcision" (2002) 22:1 Boston College Third World Law Journal 201-223;

23.       Johnson, Heather, "There are Worse Things Than Being Alone: Polygamy in Islam, Past, Present, and Future" (2005) 11 William and Mary Journal of Women and the Law 563-596;

24.       Kaufman, Amy J., "Polygamous Marriages in Canada" (2005) 21 Canadian Journal of Family Law 315;

25.       Kelly, Lisa M., "Bringing International Human Rights Law Home: An Evaluation of Canada's Family Law Treatment of Polygamy" (2007) 65 University of Toronto Faculty of Law Review 1;

26.       Leckey, Robert, "Following Same-Sex Marriage: Redefining Marriage and the Impact for Polygamy" (2007) 2:1 Les Ateliers de L'Ethique 30;

27.       Moon, Richard, "Liberty, Neutrality, and Inclusion: Religious Freedom under the Canadian Charter of Rights and Freedoms" (2003) 41 Brandeis Law Journal 563-573;

28.       Parker, Douglas H., "Victory in Defeat - Polygamy and the Mormon Legal Encounter with the Federal Government" (1991) 12 Cardozo Law Review 805-819;

29.       Rabin, Robert L., "When is a Religious Belief Religious: United States v. Seeger and the Scope of Free Exercise" (1966) 51 Cornell Law Quarterly 231-249;

30.       Rehman, Javaid, "The Sharia, Islamic Family Law and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq" (2007) 21 International Journal of Law, Policy and the Family 108-127;

31.       Sigman, Shayna M., "Everything Lawyers Know About Polygamy Is Wrong" (2006) 16 Cornell Journal of Law and Public Policy 101-185;

32.       Strassberg, Maura I., "Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage" (1997) 75 North Carolina Law Review 1501-1624;

33.       Strassberg, Maura I., "The Crime of Polygamy" (2003) 12 Temple Political & Civil Rights Law Review 353-431;

34.       Strassberg, Maura I., "The Challenge of Post-Modern Polygamy: Considering Polyamory" (2003) 31 Capital University Law Review 439-563;

35.       von Struensee, Vanessa, "The Contribution of Polygamy to Women's Oppression and Impoverishment: An Argument for its Prohibition" (2005) 12:1 Murdoch University Electronic Journal of Law 2.

b.         Articles and Book Excerpts by Academics in the Social Sciences

1.         Agadjanian, Victor & Alex Chika Ezeh, "Polygyny, Gender Relations, and Reproduction in Ghana" (2000) 31:4 Journal of Comparative Family Studies 427-441;

2.         Al-Krenawi, Alean, John. R. Graham, & Salem Al-Krenawi, "Social Work Practice with Polygamous Families" (1997) 14:6 Child and Adolescent Social Work Journal 445-458;

3.         Al-Krenawi, Alean, "Family Therapy with a Multiparental/Multispousal Family" (1998) 37:1 Family Process 65-81;

4.         Al-Krenawi, Alean, "Women of Polygamous Marriages in Primary Health Care Centers" (1999) 21:3 Contemporary Family Therapy 417-430;

5.         Al-Krenawi, Alean & John R. Graham, "The Story of Bedouin-Arab Women in a Polygamous Marriage" (1999) 22:5 Women's Studies International Forum 497-509;

6.         Al-Krenawi, Alean & Ernie S. Lightman, "Learning Achievement, Social Adjustment, and Family Conflict Among Bedouin-Arab Children from Polygamous and Monogamous Families" (2000) 140:3 Journal of Social Psychology 345-355;

7.         Al-Krenawi, Alean & John R. Graham, "Polygamous Family Structure and Its Interaction with Gender: Effects on Children's Academic Achievements and Implications for Culturally Diverse Social Work Practice in Schools" (Spring 2001) 25:3 School Social Work Journal 1-16;

8.         Al-Krenawi, Alean, John R. Graham & Abuelaish Izzeldin, "The Psychosocial Impact of Polygamous Marriages on Palestinian Women" (2001) 34:1 Women and Health 1-16;

9.         Al-Krenawi, Alean, "Women from Polygamous and Monogamous Marriages in an Out-Patient Psychiatric Clinic" (June 2001) 38:2 Transcultural Psychiatry 187-199;

10.       Al-Krenawi, Alean & Rachel Lev-Wiesel, "Wife Abuse Among Polygamous and Monogamous Bedouin-Arab Families" (2002) 36:3/4 Journal of Divorce & Remarriage 151-165;

11.       Al-Krenawi, Alean, John R. Graham & Vered Slonim-Nevo, "Mental Health Aspects of Arab-Israeli Adolescents From Polygamous Versus Monogamous Families" (2002) 142:4 Journal of Social Psychology 446-460;

12.       Al-Krenawi, Alean & John R. Graham, "Principles of Social Work Practice in the Muslim Arab World" (2003) 25:4 Arab Studies Quarterly 75-91;

13.       Al-Krenawi, Alean & John R. Graham, "A Comparison of Family Functioning, Life and Marital Satisfaction, and Mental Health of Women in Polygamous and Monogamous Marriages" (2006) 52:1 International Journal of Social Psychiatry 5-17;

14.       Al-Krenawi, Alean, John R. Graham & Sivan Ben-Shimol-Jacobsen, "Attitudes Toward and Reasons for Polygamy Differentiated by Gender and Age Among Bedouin-Arabs of the Negev" (2006) 35:1 International Journal of Mental Health 46-61;

15.       Al-Krenawi, Alean, Vered Slonim-Nevo & John R. Graham, "Polygyny and its Impact on the Psychosocial Well-being of Husbands" (2006) 37:2 Journal of Comparative Family Studies 173-189;

16.       Al-Krenawi, Alean & Vered Slonim-Nevo, "The Psychosocial Profile of Bedouin Arab Women Living in Polygamous and Monogamous Marriages" (2008) 89:1 Families in Society: Journal of Contemporary Social Services 139-149;

17.       Al-Krenawi, Alean & Vered Slonim-Nevo, "Psychosocial and Familial Functioning of Children From Polygynous and Monogamous Families" (2008) 148:6 Journal of Social Psychology 745-764;

18.       Al-Sherbiny, Lotfy A.M., "The Case of First Wife in Polygamy: Description of an Arab Culture-Specific Condition" (2005) 8 Arabpsynet e.Journal 18-26;

19.       Amey, Foster K., "Polygyny and Child Survival in West Africa" (2002) 49:1/2 Social Biology 74-89;

20.       Anderson, Connie M., "The Persistence of Polygyny as an Adaptive Response to Poverty and Oppression in Apartheid South Africa" (2000) 34:2 Cross-Cultural Research 99-112;

21.       Bacon, Margaret K., Irvin L. Child & Herbert Barry III, "A Cross-Cultural-Study of Correlates of Crime" (1963) 66:4 Journal of Abnormal and Social Psychology 291-300;

22.       Becker, Gary S., "A Theory of Marriage: Part I" (1973) 81:4 Journal of Political Economy 813-846;

23.       Bennion, Janet, "Abbas Raptus : Exploring Factors that Contribute to the Sexual Abuse of Females in Rural Mormon Fundamentalist Communities" (Fall 2006) 1 Forum on Public Policy Online;

24.       Betzig, Laura L., "Despotism and Differential Reproduction: A Cross-Cultural Correlation of Conflict Asymmetry, Hierarchy, and Degree of Polygyny" (1982) 3 Ethology and Sociobiology 209-221;

25.       Betzig, Laura, "Roman Polygyny" (1992) 13 Ethology and Sociobiology 309-349;

26.       Betzig, Laura, "Roman Monogamy" (1992) 13 Ethology and Sociobiology 351-383;

27.       Bishai, David & Shoshana Grossbard, "Far Above Rubies: The Association Between Bride Price and Extramarital Sexual Relations in Uganda" (August 2007) IZA Discussion Paper No. 2982;

28.       Bove, Riley & Claudia Valeggia, "Polygyny and Women's Health in Sub-Saharan Africa" (2009) 68 Social Science & Medicine 21-29;

29.       Bradley, Martha Sonntag, "Response: Patriarchy, Intervention, and Prophetic Leadership Challenges in the Culture of Mormon Fundamentalism" (2006) 10:1 Nova Religio: The Journal of Alternative and Emergent Religions 30-42;

30.       Brooks, Thorn, "The Problem with Polygamy" (January 22, 2009) SSRN Working Paper Series;

31.       Broude, Gwen J. & Sarah J. Greene, "Cross-Cultural Codes on Twenty Sexual Attitudes and Practices" (1976) 15:4 Ethnology 409-429;

32.       Chaleby, Kutaiba, "Women of Polygamous Marriages in an Inpatient Psychiatric Service in Kuwait" (1985) 173:1 Journal of Nervous and Mental Disease 56-58;

33.       Chaleby, Kutaiba, "Women of Polygamous Marriages in Outpatient Psychiatric Services in Kuwait" (1987) 8:1International Journal of Family Psychiatry 25-34;

34.       Chaleby, Kutaiba, "Traditional Arabian Marriages and Mental Health in a Group of Outpatient Saudis" (1988) 77:2 Acta Psychiatrica Scandinavica 139-142;

35.       Cherian, Varghese I., "Academic Achievement of Children from Polygamous and Monogamous Families" (2001) 130:1 Journal of Social Psychology 117-119;

36.       Chisholm, James S. & Victoria K. Burbank, "Monogamy and Polygyny in Southeast Arnhem Land: Male Coercion and Female Choice" (1991) 12 Ethology and Sociobiology 291-313;

37.       Clignet, Remi & Joyce Sween, "Urbanization, Plural Marriage, and Family Size in Two African Cities" (1974) 1 American Ethnologist 221-242;

38.       Cohen, Philip N., "The Gender Division of Labor: 'Keeping House' and Occupational Segregation in the United States" (2004) 18:2 Gender & Society 239-252;

39.       Cwikel, Julie, Rachel Lev-Wiesel & Alean Al-Krenawi, "The Physical and Psychosocial Health of Bedouin Arab Women of the Negev Area of Israel: The Impact of High Fertility and Pervasive Domestic Violence" (2003) 9:2 Violence Against Women 240-257;

40.       Dangor, Suleman, "Historical Perspective, Current Literature and an Opinion Survey among Muslim Women in Contemporary South Africa: A Case Study" (2001) 21:1 Journal of Muslim Minority Affairs 109-129;

41.       Driggs, Ken, "Fundamentalist Attitudes toward the Church: The Sermons of Leroy S. Johnson" (Summer 1990) 23:2 Dialogue: A Journal of Mormon Thought 39-60;

42.       Edlund, Lena & Evelyn Korn, "A Theory of Prostitution" (2002) 110:1 Journal of Political Economy 181-214;

43.       Edlund, Lena et al., "Sex Ratios and Crime: Evidence from China's One-Child Policy" (December 2007) IZA Discussion Paper No. 3214;

44.       Efoghe, G.B., "Nature and Type of Marriage as Predictors of Aggressiveness among Married Men and Women in Ekpoma, Bendel State of Nigeria" (1990) 20 International Journal of Sociology and the Family 67;

45.       Elbedour, Salman, William Bart & Joel Hektner, "Scholastic Achievement and Family Marital Structure: Bedouin-Arab Adolescents from Monogamous and Polygamous Families in Israel" (2000) 140:4 Journal of Social Psychology 503-514;

46.       Elbedour, Salman, Anthony J. Onwuegbuzie & Mohammad Alatamin, "Behavioral Problems and Scholastic Adjustment among Bedouin-Arab Children from Polygamous and Monogamous Family Structures: Some Developmental Considerations" (2003) 129:3 Genetic, Social, and General Psychology Monographs 213-237;

47.       Elbedour, Salman, William Bart & Joel Hektner, "Intelligence and Family Marital Structure: The Case of Adolescents from Monogamous and Polygamous Families Among Bedouin Arabs in Israel" (2003) 143:1 Journal of Social Psychology 95-110;

48.       Elbedour, Salman, William Bart & Joel Hektner, "The Relationship Between Monogamous/Polygamous Family Structure and the Mental Health of Bedouin Arab Adolescents" (2007) 30 Journal of Adolescence 213-230;

49.       Gage-Brandon, Anastasia J., "The Polygyny-Divorce Relationship: A Case Study of Nigeria" (1992) 54:2 Journal of Marriage and Family 285-292;

50.       Gibson, Mhairi A. & Ruth Mace, "Polygyny, Reproductive Success and Child Health in Rural Ethiopia: Why Marry a Married Man?" (2007) 39:2 Journal of Biosocial Science 287-300;

51.       Gyimah, Stephen Obeng, "Polygynous Marital Structure and Child Survivorship in Sub-Saharan Africa: Some Empirical Evidence from Ghana" (2009) 68:2 Social Science & Medicine 334-342;

52.       Grossbard, Amyra, "Towards a Marriage Between Economics and Anthropology and A General Theory of Marriage" (1978) 68:2 American Economic Review 33-37;

53.       Grossbard-Shechtman, Shoshana, On the Economics of Marriage: A Theory of Marriage, Labour, and Divorce (Boulder, Colorado: Westview Press, 1993), chapters 4 ("Theoretical Implications for Marriage") and 11 ("A Theory of Polygamy");

54.       Grossbard, Shoshana, Jose Ignacio Giménez & Jose Alberto Molina, "Racial Discrimination and Household Chores" (September 9, 2009);

55.       Gutterman, David S., "Postmodernism and the Interrogation of Masculinity" in Harry Brod & Michael Kaufman, eds., Theorizing Masculinities (Thousand Oaks, Calif: Sage Publications, 1994) 219-238;

56.       Hadley, Craig, "Is Polygyny a Risk Factor for Poor Growth Performance Among Tanzanian Agropastoralists?" (2005) 126 American Journal of Physical Anthropology 471-480;

57.       Hamdan, Sami, Judy Auerbach, & Alan Apter, "Polygamy and Mental Health of Adolescents'" (2009) 18 European Child & Adolescent Psychiatry 755-760;

58.       Hames, Raymond, "Costs and Benefits of Monogamy and Polygyny for Yanomamö Women" (1996) 17 Ethology and Sociobiology 181-199;

59.       Hassouneh-Phillips, Dena, "Polygamy and Wife Abuse: A Qualitative Study of Muslim Women in America" (2001) 22 Health Care for Women International 735-748;

60.       Herlihy, David, "Biology and History: The Triumph of Monogamy" (1995) 25:4 Journal of Interdisciplinary History 571-583;

61.       Ho-Yen, Signe Dørheim et al., "Factors Associated with Depressive Symptoms Among Postnatal Women in Nepal" (2007) 86 Acta Obstetricia et Gynecologica Scandinavica 291-297;

62.       Hudson, Valerie M. & Andrea Den Boer, "A Surplus of Men, a Deficit of Peace: Security and Sex Ratios in Asia's Largest States" (2002) 26:4 International Security 5-38;

63.       Jankowiak, William, Monika Sudakov, & Benjamin C. Wilreker, "Co-Wife Conflict and Co-operation" (2005) 44:1 Ethnology 81-98;

64.       Kanazawa, Satoshi and Mary C. Still, "Why Monogamy?" (1999) 78:1 Social Forces 25-50;

65.       Kanazawa, Satoshi and Mary C. Still, "Why Men Commit Crimes (and Why They Desist)" (1999) [unpublished];

66.       Kanazawa, Satoshi & Mary C. Still, "Why Men Commit Crimes (and Why They Desist)" (2000) 18:3 Sociological Theory 434-447;

67.       Kanazawa, Satoshi, "Why Father Absence Might Precipitate Early Menarche: The Role of Polygyny" (2001) 22 Evolution and Human Behaviour 329-334;

68.       Kent, Stephen A., "A Matter of Principle: Fundamentalist Mormon Polygamy. Children, and Human Rights Debates" (2006) 10:1 Nova Religio: The Journal of Alternative and Emergent Religions 7-29;

69.       Kent, Stephen A., "Harm, Human Rights and the Continued Criminalization of Fundamentalist Mormon Polygamy" [forthcoming in Marci Hamilton & Mark Rozell eds. Fundamentalism, Politics, and the Law (Waco, Texas: Baylor University Press)];

70.       Kianpoor, M., N.M. Bakhshani & N. Daemi, "Co-occurrence of Panic Disorder and Being a Wife in a Polygamous Family" (2006) 6:5 Journal of Medical Science 870-873;

71.       Klomegah, Roger, "Socio-Economic Characteristics of Ghanaian Women in Polygynous Marriages" (1997) 28:1 Journal of Comparative Family Studies 73-88;

72.       Korotayev, Andrey & Dmitri Bondarenko. "Polygyny and Democracy: A Cross-Cultural Comparison" (2000) 34:2 Cross-Cultural Research 190-208;

73.       Kruger, Daniel J., "Socio-Demographic Factors Intensifying Male Mating Competition Exacerbate Male Mortality Rates" (2010) 8:2 Evolutionary Psychology 194-204;

74.       Lev-Wiesel, Rachel & Alean Al-Krenawi, "Perception of Family Among Bedouin-Arab Children of Polygamous Families as Reflected in their Family Drawings" (2000) 38 American Journal of Art Therapy 98-106;

75.       Levine, Nancy E. & Joan B. Silk, "Why Polyandry Fails: Sources of Instability in Polyandrous Marriages" (1997) 38:3 Current Anthropology 375-398;

76.       MacDonald, Kevin, "Mechanisms of Sexual Egalitarianism in Western Europe" (1990) 11Ethology and Sociobiology 195-238;

77.       MacDonald, Kevin, "The Establishment and Maintenance of Socially Imposed Monogamy in Western Europe" (1995) 14:1 Politics and the Life Sciences 3-23;

78.       Madhavan, Sangeetha, "Best of Friends and Worst of Enemies: Competition and Collaboration in Polygyny" (2002) 41:1 Ethnology 69-84;

79.       M'Salha, Mohamed , "Qu'en est-il Aujourd'hui de la Polygamie et de la Répudiation en Droit Marocain" (2001) 53:1 Revue Internationale de Droit Comparé 171-182;

80.       Meekers, Dominique & Nadra Franklin, "Women's Perceptions of Polygyny among the Kaguru of Tanzania" (1995) 34:4 Ethnology 315

81.       Mulder, Monique Borgerhoff , "Women's Strategies in Polygynous Marriage: Kipsigis, Datoga, and Other East African Cases" (1992) 3:1 Human Nature 45-70;

82.       Musisi, Nakanyike B., "Women, 'Elite Polygyny,' and Buganda State Formation" (1991) 16:4 Signs: Journal of Women in Culture and Society 757-786;

83.       Myers, Wade C. & Steve J. Brasington, "A Father Marries His Daughters: A Case of Incestuous Polygamy" (2002) 47:5 Journal of Forensic Science 1112-1116;

84.       Omariba, D. Walter Rasugu & Michael H. Boyle, "Family Structure and Child Mortality in Sub-Saharan Africa: Cross-National Effects of Polygyny" (2007) 69:2 Journal of Marriage and Family 528-543;

85.       Owuamanam, Donatus Ojiakudiniro , "Adolescents' Perception of Polygamous Family and Its Relationship to Self-Concept" (1984) 19 International Journal of Psychology 593-598;

86.       Ozkan, Mustafa et al., "Mental Health Aspects of Turkish Women from Polygamous Versus Monogamous Families" (2006) 52:3 International Journal of Social Psychiatry 214-220;

87.       Patil, Crystal & Craig Hadley, "Symptoms of Anxiety and Depression and Mother's Marital Status: An Exploratory Analysis of Polygyny and Psychosocial Stress" (2008) 20:4 American Journal of Human Biology 475-477;

88.       Peters, Marla, Pearls Before Swine: Secrecy in a Mormon Polygynous Community (M.A. Thesis, University of Alberta Department of Sociology, 1994) [unpublished];

89.       Pinker, Steven, How the Mind Works (New York: Norton, 1997) at 425-520

90.       Quinn, D. Michael, "LDS Church Authority and New Plural Marriages, 1890-1904" (Spring 1985) 18:1 Dialogue: A Journal of Mormon Thought 9-105;

91.       Scheidel, Walter, "Monogamy and Polygyny in Greece, Rome, and World History" (June 2008) Princeton/Stanford Working Papers in Classics;

92.       Scheidel, Walter, "A Peculiar Institution? Greco-Roman Monogamy in Global Context" (2009) 14 History of the Family 280-291;

93.       Sellen, Daniel W., "Polygny and Child Growth in a Traditional Pastoral Society: The Case of the Datoga of Tanzania" (1999) 10:4 Human Nature 329-371;

94.       Sellen, Daniel W., "Family Structure and Child Growth in sub-Saharan Africa: Assessing Hidden Risk" in Catherine Panter-Brick & Agustin Fuentes, eds., Health Risk, and Adversity (New York; Oxford: Berghahn Books, 2009) at 150-72

95.       Slonim-Nevo, Vered & Alean Al-Krenawi, "Success and Failure Among Polygamous Families: The Experience of Wives, Husbands, and Children" (2006) 45:3 Family Process 311-330;

96.       Slonim-Nevo, Vered, Alean Al-Krenawi & Bar Yuval-Shani, "Polygynous Marriage in the Middle East: Stories of Success and Failures" (2008) 47:3 Ethnology 195-208;

97.       South, Scott J. & Katherine Trent, "Sex Ratios and Women's Roles: A Cross-National Analysis" (1988) 93:5 American Journal of Sociology 1096-1115;

98.       Strassmann, Beverley I., "Polygyny as a Risk Factor for Child Mortality Among the Dogon" (1997) 38:4 Current Anthropology 688-695;

99.       Tertilt, Michèle, "Polygyny, Fertility, and Savings" (2005) 113:6 Journal of Political Economy 1341-1371;

100.     Tertilt, Michèle, "Polygyny, Women's Rights, and Development" (May 2006) 4:2/3 Journal of the European Economic Association 523-530;

101.     Tibatemwa-Ekirikubinza, Lillian, "Multiple Partnering, Gender Relations and Violence by Women in Uganda" (1998) 4:1 East African Journal of Peace & Human Rights 15-40;

102.     Valsiner, Jaan, "Organization of Children's Social Development in Polygamic Families" in Jaan Valsiner, ed., Child Development in Cultural Context (Toronto: Hogrefe and Huber Publishers, 1989) at 67-85;

103.     White, Douglas R., "Rethinking Polygny: Co-Wives, Codes, and Cultural Systems" (1988) 29:4 Current Anthropology 529-572;

104.     White, Douglas R. & Michael L. Burton, "Causes of Polygyny: Ecology, Economy, Kinship, and Warfare" (1988) 90:4 American Anthropologist 871-887;

105.     Wittrup, Inge, "Me and My Husband's Wife: An Analysis of Polygyny among Mandinka in the Gambia" (1990) 32 Folk 117-141;

106.     Wright, Robert, The Moral Animal: Why We Are the Way We Are: The New Science of Evolutionary Psychology (New York: Vintage, 1994) at 33-107.

c.         Books - Academic

1.         Altman, Irwin & Joseph Ginat, Polygamous Families in Contemporary Society (Cambridge: Cambridge University Press, 1996);

2.         Bailey, Martha & Amy J. Kaufman, Polygamy in the Monogamous World: Multicultural Challenges for Western Law and Policy (Santa Barbara, Calif.: Praeger, 2010);

3.         Carter, Sarah, The Importance of Being Monogamous: Marriage and Nation Building in Western Canada to 1915 (Edmonton: University of Alberta Press, 2008);

4.         Daynes, Kathryn M., More Wives Than One: Transformation of the Mormon Marriage System, 1840-1910 (Chicago: University of Illinois Press, 2001);

5.         Guttentag, Marcia & Paul F. Secord, Too Many Women?: The Sex Ratio Question (Beverly Hills, Calif.: Sage Publications, 1983) ;

6.         Hudson, Valerie M. & Andrea M. den Boer, Bare Branches: Security Implications of Asia's Surplus Male Population (Cambridge, Mass.: MIT Press, 2004);

7.         Kilbride, Philip L., Plural Marriage for Our Times: A Reinvented Option? (Westport, Conn.: Bergin and Garvey, 1994);

8.         Keegan, Sheila , Qualitative Research: Good Decision Making Through Understanding People, Cultures and Markets (London, U.K.; Philadelphia: Kogan Page, 2009);

9.         Marshall, Catherine & Gretchen B. Rossman, Designing Qualitative Research, 4^th ed. (Thousand Oaks, Calif.: Sage Publications, 2006) ;

10.       McIntyre, Lisa J., Need to Know: Social Science Research Methods (Boston: McGraw-Hill, 2005);

11.       Zeitzen, Miriam Koktvedgaard, Polygamy: A Cross-Cultural Analysis (Oxford; New York: Berg, 2008).

d.         Books - Journalistic, Historical, and Autobiographical Accounts

1.         Bramham, Daphne, The Secret Lives of Saints: Child Brides and Lost Boys in Canada's Polygamous Mormon Sect (Toronto: Vintage Canada, 2008);

2.         Coates, James, In Mormon Circles: Gentiles, Jack Mormons, and Latter-day Saints (Reading, Mass.: Addison-Wesley Pub. Co., 1991);

3.         Krakauer, Jon, Under the Banner of Heaven: A Story of Violent Faith (New York: Doubleday, 2004);

4.         Mackert, Brian with Susan Martins Miller, Illegitimate: How a Loving God Rescued a Son of Polygamy (Colorado Springs: David C. Cook, 2008);

5.         Moore-Emmett, Andrea, God's Brothel: The Extortion of Sex for Salvation in Contemporary Mormon and Christian Fundamentalist Polygamy and the Stories of 18 Women Who Escaped (San Francisco: Pince-Nez Press, 2004);

6.         Palmer, Debbie & Dave Perrin, Keep Sweet: Children of Polygamy (Lister, B.C.: Dave's Press, 2004);

7.         Singular, Stephen, When Men Become Gods: Mormon Polygamist Warren Jeffs, His Cult of Fear, and the Women Who Fought Back (New York: St. Martin's Press, 2009);

8.         Smith, George D., Nauvoo Polygamy: "...But We Called it Celestial Marriage" (Salt Lake City, Utah: Signature Books, 2008);

9.         Solomon, Dorothy Allred, Daughter of the Saints: Growing Up in Polygamy (New York: Norton, 2004);

10.       Spencer, Irene, Shattered Dreams: My Life as a Polygamist's Wife (New York: Center Street, 2008);

11.       Spencer, Irene, Cult Insanity: A Memoir of Polygamy, Prophets, and Blood Atonement (New York: Center Street, 2009);

12.       Tracy, Kathleen, The Secret Story of Polygamy (Naperville, Illinois: Sourcebooks, 2002);

13.       Van Wagoner, Richard S., Mormon Polygamy: A History (Salt Lake City, Utah: Signature Books, 1986);

14.       Wall, Elissa with Lisa Pulitzer, Stolen Innocence: My Story of Growing Up in a Polygamous Sect, Becoming a Teenage Bride, and Breaking Free of Warren Jeffs (New York: Harper, 2008);

15.       Western, Dr. Carole A., Inside the World of Warren Jeffs: The Power in Polygamy (Albuquerque, N.M.: Wyndham, 2007);

16.       Young, Ann Eliza, Wife No. 19, or the Story of a Life in Bondage, Being a Complete Expose of Mormonism, and Revealing the Sorrows, Sacrifices and Sufferings of Women in Polygamy (Hartford, Conn.: Dustin, Gilman & Co., 1876).

e.         Magazine and Newspaper Articles

1.         Anderson, Scott, "The Polygamists", 217:2 National Geographic (February 2010) 34;

2.         Bramham, Daphne, "Why There's Silence on Crimes in Bountiful: Sexual Exploitation of Girls Continues, But Those Who Should Report It Don't", The Vancouver Sun (3 December 2004);

3.         Bramham, Daphne, "B.C.'s Foot in the Door at Bountiful: Funding Education in the Community Gives Authorities a Reason to Scrutinize Schools”, The Vancouver Sun (17 December 2004);

4.         Hoffman, Bruce, "All You Need Is Love: How the Terrorists Stopped Terrorism”, Atlantic Monthly 288:5 (December 2001);

5.         Kelly, David, "Polygamy's 'Lost Boys' Expelled from Only Life They Know: Sect's Outcasts are Casualty of Marriage Practice”, The Boston Globe (19 June 2005);

6.         Kurtz, Stanley, "Polygamy Versus Democracy: You Can't Have Both", The Weekly Standard 11:36 (5 June 2006);

7.         Wood, Peter, "Sex & Consequences: An Anthropologist Vindicates the Traditional Family", The American Conservative (28 July 2003).

f.          Reports, Surveys, and Statistics

1.         Committee on Polygamous Issues, "Life in Bountiful: A Report on the Lifestyle of a Polygamous Community" (April 1993);

2.         "Eldorado Investigation: A Report from the Texas Department of Family and Protective Services" (22 December 2008);

3.         US, Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response: Hearing Before the Senate Committee on the Judiciary, 110^th Cong (Washington, DC: U.S. Government Printing Office, 2008);

4.         "What the World Thinks of Canada: Canada and the World in 2010 - Immigration and Diversity", Ipsos Reid for Historica Dominion Institute (22 June 2010);

5.         "World Marriage Patterns 2000", United Nations, Population Division, Department of Economic & Social Affairs;

6.         Dryburgh, Heather, "Teenage pregnancy" (2000) 12:1 Statistics Canada - Health Reports;

7.         Luong, May, "Life after Teenage Motherhood" (May 2008) Statistics Canada -Perspectives;

8.         Rotermann, Michelle, "Second or Subsequent Births to Teenagers" (February 2007) 18:1 Statistics Canada - Health Reports.

g.         Multimedia Materials

1.         Banking on Heaven: Polygamy in the Heartland of the American West, DVD, directed by Dot Reidelbach (Sedona, Arizona: Over the Moon Productions, 2006);

2.         Polygamy's Lost Boys, DVD, directed by Maureen Palmer (Vancouver: Bountiful Films, 2006);

3.         Leaving Bountiful, DVD, directed by Helen Slinger (Vancouver: Bountiful Films, 2002);

4.         Lifting the Veil of Polygamy, DVD, directed by Joel P. Kramer & Scott R. Johnson (Living Hope Ministries, 2007).

Exhibits to Affidavit #2 of Kaley Isbister Sworn November 22, 2010

1.         Brooks, Geraldine, Nine Parts of Desire: The Hidden World of Islamic Women (New York: Anchor Books, 1995);

2.         Clark, Gregory, A Farewell to Alms: A Brief Economic History of the World (Princeton, New Jersey: Princeton University Press, 2007), ch. 4;

3.         Embry, Jessie L., "Exiles for the Principle: LDS Polygamy in Canada" (Fall 1985) 18:3 Dialogue: A Journal of Mormon Thought 108-116;

4.         Gruenbaum, Ellen, The Female Circumcision Controversy: An Anthropological Perspective (Philadelphia: University of Pennsylvania Press, 2001);

5.         Lehr, John C., "Polygamy, Patrimony, and Prophecy: The Mormon Colonization of Cardston" (Winter 1988) 21:4 Dialogue: A Journal of Mormon Thought 114-121;

6.         Sons of Perdition: The Story of Polygamy’s Exiled Youth, DVD, directed by Jennilyn Merten and Tyler Measom (Left Turn Films, 2010);

7.         Status of Women Quebec, “La polygamie au regard du droit des femmes” (November 13, 2010);

8.         Wu, Zheng, "Recent Marriage Trends in Canada" (September 1998) Policy Options.

Exhibits to Affidavit #4 of Kaley Isbister Sworn 3 February 2011

1. Bartholomew, G.W., "Polygamous Marriages and English Criminal Law" (1954) 17 Modern Law Review 344;

2.         Card, Brigham Y. et al., The Mormon Presence in Canada (Edmonton, Alberta: The University of Alberta Press, 1990), chapters 3, 5, 6, 9 and 10;

3.         McCue, Robert J, "Anthony Maitland Stenhouse, Bachelor ‘Polygamist’" (1990) 23:1 Dialogue: A Journal of Mormon Thought 108-125.

Exhibits to Affidavit #1 of Brianna Luca sworn 16 October 2010

a.         Journal Articles, Papers and Book Extracts on Mormon Polygamy

1.         Baum, Bruce, "Feminism, Liberalism and Cultural Pluralism: J. S. Mill on Mormon Polygyny" (1997) 5:3 Journal of Political Philosophy 230-253;

2.         Cannon, Charles A., "The Awesome Power of Sex: The Polemical Campaign Against Mormon Polygamy" (1974) 43:1 Pacific Historical Review 61-83;

3.         Denike, Margaret, "The Racialization of White Man's Polygamy" (2010) 25:4 Hypatia 852-874;

4.         Eliason, Eric A., "Curious Gentiles and Representational Authority in the City of the Saints" (2001) 11:2 Religion and American Culture: A Journal of Interpretation 155-190;

5.         Ertman, Martha M., "The Story of Reynolds v. United States: Federal 'Hell Hounds' Punishing Mormon Treason" in Carol Sanger, ed., Family Law Stories (Foundation Press, 2007) 51-75;

6.         Gordon, Sarah Barringer, "'The Liberty of Self-Degradation': Polygamy, Woman Suffrage, and Consent in Nineteenth-Century America" (1996) 83:3 Journal of American History 815-847;

7.         Gordon, Sarah Barringer, "Blasphemy and the Law of Religious Liberty in Nineteenth-Century America" (2000) 52:4 American Quarterly 682-719;

8.         Handley, William R., "Belonging(s): Plural Marriage, Gay Marriage and the Subversion of 'Good Order'" (2004) 26:3 Discourse 85-109;

9.         Iversen, Joan, "Feminist Implications of Mormon Polygyny" (1984) 10:3 Feminist Studies 505-522;

10.       Kane, Nazneen, "For Polygyny: Reproductive Rights and Empowerment amongst 19th Century Mormon Women" (Paper delivered at the Annual Meeting of the American Sociological Association, Montreal Convention Centre, 10 August 2006), [unpublished];

11.       "Mormon" Women's Protest: An Appeal for Freedom, Just and Equal Rights (6 March 1886), New Haven, CT, Beinecke Library, Yale University (No. 3186.1);

12.       Nussbaum, Martha C, "Fearing Strangers" in Liberty of Conscience: In Defense of America's Tradition of Religious Equality (New York: Basic Books, 2008) 175-198;

13.       Song, Sarah, "Majority Norms, Multiculturalism, and Gender Equality" (2005) 99:4 American Political Science Review 473-489;

14.       Van Wagoner, Richard S., "Mormon Polyandry in Nauvoo" (1985) 18:3 Dialogue: A Journal of Mormon Thought 67-83.

b.         Journal Articles, Papers, Book Extracts and Archival Material on General or Other Perspectives on Polygamy, Bigamy and Relationships

1.         Anderson, Connie M., "The Persistence of Polygyny as an Adaptive Response to Poverty and Oppression in Apartheid South Africa" (2000) 34:2 Cross-Cultural Research 99-112;

2.         Calhoun, Chesire, "Who's Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy" (2005) 42 San Diego Law Review 1023-1042;

3.         Chambers, David L., "Polygamy and Same-Sex Marriage" (1997) 26:1 Hofstra L Rev 53-83;

4.         Clignet, Remi & Joyce A. Sween, "For a Revisionist Theory of Human Polygyny" (1981) 6:3 Signs: Journal of Women in Culture and Society 445-468;

5.         Collins, Jennifer M., Ethan J. Leib & Dan Markel, "Punishing Family Status" (2008) 88 Boston University Law Review 1327-1423;

6.         Cossman, Brenda & Bruce Ryder, "What is Marriage-like Like? The Irrelevance of Conjugality" (2001) 18:2 Canadian Journal of Family Law 269-326;

7.         Den Otter, Ronald C, "Is There Really Any Good Argument Against Plural Marriage?" (2009);

8.         Emens, Elizabeth F., "Just Monogamy?" in Mary Lyndon Shanley, ed., Just Marriage (New York: Oxford University Press, 2004) 75-80;

9.         Kaganas, Felicity & Christina Murray, "Law, Women and the Family: the Question of Polygyny in a new South Africa" (1991) Acta Juridica 116-134;

10.       Law Commission of Canada, Beyond Conjugality: Recognizing and supporting close personal and adult relationships (Ottawa: Law Commission of Canada, 2001);

11.       Law Reform Commission of Canada, Bigamy, Working Paper 42 (Ottawa: Law Reform Commission of Canada, 1985);

12.       Lawson, David W., Fiona M. Jordan & Kesson Magid, "On Sex and Suicide Bombing: An Evaluation of Kanazawa's 'Evolutionary Psychological Imagination'" (2008) 6:1 Journal of Evolutionary Psychology 73-84;

13.       Letter with enclosures from F.S. Hussey, Superintendent, Provincial Police Department, to the Attorney General of BC (5 March 1903), Victoria, BC Archives (Reel No. B09321, Box 10, File 1, Folio 674/03);

14.       Majeed, Debra, "Muslim Marriage: A Womanist Perspective on Troubling US Traditions" (Paper delivered at the "Aint I a Womanist Too?": Third Wave Womanist Religious Thought conference, 26 February 2010), [unpublished];

15.       March, Andrew F., "Is There a Right to Polygamy? Marriage, Equality and Subsidizing Families in Liberal Public Justification" (20 February 2009) Journal of Moral Philosophy [forthcoming].

16.       Moloney, Pat, "Savages in the Scottish Enlightenment's History of Desire" (2005) 14:3 Journal of the History of Sexuality 237-265;

17.       Rude-Antoine, Edwige, "Muslim Maghrebian Marriage in France: A Problem for Legal Pluralism" (1991) 5 International Journal of Law and the Family 93-103;

18.       Stacey, Judith, "Paradoxes of Polygamy and Modernity" and "Conclusion" in forthcoming book, Unhitched, all rights reserved (NYU Press, 2011);

19.       Yanca, Catherine & Bobbi S. Low, "Female Allies and Female Power: A Cross-Cultural Analysis" (2004) 25 Evolution and Human Behavior 9-23.

c.         Newspaper Articles, Transcripts and Online Materials on Polygamy

1.         Atkinson, Cathryn, "Bountiful students not taught polygamy, ministry says", The Globe and Mail (17 April 2007);

2.         Bartolone, Pauline, "For these Muslims, polygamy is not an option", The San Francisco Chronicle (5 August 2007);

3.         "B.C. polygamists want age of consent raised", CTV News (19 February 2005);

4.         Berger, Knute, "Racing Down the Slippery Slope", Seattle Weekly (23 June 2004) 9;

5.         Carmichael, Amy, "Wives of polygamous colony plan public relations campaign", Trail Times (6 August 2004) 2;

6.         D'Amour, Mike, "Sect greets abuse probe", Calgary Sun (27 July 2004);

7.         D'Amour, Mike, "Sect wives defend lives", Calgary Sun (29 July 2004);

8.         Dobner, Jennifer, "Teens Defend Polygamy at Utah Rally", Washington Post (20 August 2006);

9.         Hagerty, Barbara Bradley, "Philly's Black Muslims Increasingly Turn to Polygamy", National Public Radio (28 May 2008);

10.       House, Dawn, "Sister Widows: Wives of dead polygamist rebuild their lives", Salt Lake Tribune (24 February 2002) Fl;

11.       Janofsky, Michael, "Conviction of a Polygamist Raises Fears Among Others", The New York Times (24 May 2001) 14;

12.       Joseph, Elizabeth, "Polygamy - The Ultimate Feminist Lifestyle", online: Islam for Today <http://www.islamfortoday.com>;

13.       "Polygamy in America: Lisa Ling Reports" [television transcript] (26 October 2007), The Oprah Winfrey Show, Harpo Productions Inc.;

14.       Sullum, Jacob, "Attacking Pluralism", Reason Magazine (29 May 2001);

15.       Tierney, John, "Who's Afraid of Polygamy?", The New York Times (11 March 2006).

d.         Additional Perspectives on Women's Roles, Choices and Status

1.         Angier, Natalie, "Men, Women, Sex and Darwin", The New York Times (21 February 1999);

2.         Beckford, Martin, "Young women 'have more sexual partners' than men", The Telegraph (8 December 2008);

3.         Brown, Gillian R., Kevin N. Laland & Monique Borgerhoff Mulder, "Bateman's Principles and Human Sex Roles" (2009) 24:6 Trends in Ecology and Evolution 297-304;

4.         Brown, Norman & Robert C. Sinclair, "Estimating Number of Lifetime Sexual Partners: Men and Women Do It Differently" (1999) 36:3 Journal of Sex Research 292-297;

5.         Fausto-Sterling, Anne, "Beyond Difference: Feminism and Evolutionary Psychology" in Hilary Rose & Steve Rose, eds., Alas, Poor Darwin: Arguments Against Evolutionary Psychology (New York: Harmony Books, 2000) 209-227;

6.         Greiling, Heidi & David M. Buss, "Women's sexual strategies: the hidden dimensions of extra-pair mating" (2000) 28 Personality and Individual Differences 929-963;

7.         Kolata, Gina, "The Myth, the Math, the Sex", The New York Times (12 August 2007);

8.         Malik, Maleiha, '"The Branch on Which We Sit': Multiculturalism, Minority Women and Family Law" in Alison Diduck & Katherine O'Donovan, eds., Feminist Perspectives on Family Law (New York: Routledge, 2006) 211-233;

9.         Mulder, Monique Borgerhoff, "Are men and women really so different?" (2004) 19:1 Trends in Ecology and Evolution 3-6;

10.       Proudfoot, Shannon, "The new breadwinners", The Vancouver Sun (6 October 2010) Bl;

11.       Shachar, Ayelet, "The Paradox of Multicultural Vulnerability: Individual Rights, Identity Groups, and the State" in Christian Joppke & Steven Lukes, eds., Multicultural Questions (New York: Oxford University Press, 1999) 87-111;

12.       Sims, Paul, "In the age of promiscuity, women have more sexual partners than men", The Daily Mail (9 December 2008).

e.         Family Size

1.         "19 Kids & Counting!", online: The Jim Bob & Michelle Duggar Family <http://duggarfamily.com.>;

2.         "About the Duggar Family", online: The Jim Bob & Michelle Duggar Family <http://duggarfamily.com>;

3.         Duggar, Michelle, Jim Bob Duggar with Rebecca Ingram Powell, "Meet the Duggars: Perspectives on Christian Parenting" ParentLife (May 2008) 18;

4.         Heaton, Tim B., "Demographics of the Contemporary Mormon Family" (1985) 25:3 Dialogue: A Journal of Mormon Thought 19-34;

5.         Ravanera, Zenaida R. & Fernando Rajulton, "Fertility of Canadian Men: Levels, Trends, and Correlates" (Paper delivered at the Annual Meeting of the Population Association of America, Minneapolis, MN, 1-3 May 2003), [unpublished];

6.         Thomas, Darwin L., "Family in the Mormon Experience" in William V. D'Antonio & Joan Aldous, eds., Families and Religions: Conflict and Change in Modern Society (Beverly Hills: Sage Publications, 1983) 267-288.

f.          Nature and/or Effects of Other Social or Religious Practices and Realities

1.         Amato, Paul R. & Jacob Cheadle, "The Long Reach of Divorce: Divorce and Child Well-Being across Three Generations" (2005) 67:1 Journal of Marriage and Family 191-206;

2.         Aulakh, Raveena, "Compelled to wed once, then again", The Toronto Star (14 November 2009);

3.         Aulakh, Raveena, "Forced to wed: 'They think they're doing what's best for the child'", The Toronto Star (14 November 2009);

4.         Baker, Maureen, Families, Labour and Love (Vancouver: UBC Press, 2001) 109-113;

5.         DeKeseredy, Walter S., "Patterns of Violence in the Family" in Maureen Baker, ed., Families: Changing Trends in Canada, 6th ed. (Toronto: McGraw-Hill Ryerson, 2009) 179-205;

6.         Kraybill, Donald B., "The Social Architecture of Amish Society" in The Riddle of Amish Culture, revised ed. (Baltimore: John Hopkins University Press, 2001) 80-110;

7.         Lusterman, Don-David, "Helping Children and Adults Cope with Parental Infidelity" (2005) 61:11 JCLP/In Session 1439-1451;

8.         Olshan, Marc A. & Kimberly D. Schmidt, "Amish Women and the Feminist Conundrum" in Donald B. Kraybill & Marc A. Olshan, eds., The Amish Struggle with Modernity (Hanover, NH: University Press of New England, 1994) 215-229;

9.         Peter, Karl A., "Family and Community Relations" in The Dynamics of Hutterite Society: An Analytical Approach (Edmonton: University of Alberta Press, 1987) 61-82;

10.       Richards, M., R. Hardy & M. Wadsworth, "The effects of divorce and separation on mental health in a national UK birth cohort" (1997) 27:5 Psychological Medicine 1121-1128;

11.       Ross, Catherine E. & John Mirowsky, "Parental Divorce, Life-Course Disruption, and Adult Depression" (1999) 61 Journal of Marriage and Family 1034-1045;

12.       Spigelman, Amy & Gabriella Spigelman, "Indications of Depression and Distress in Divorce and Nondivorce Children Reflected by the Rorschach Test" (1991) 57:1 Journal of Personality Assessment 120-29;

13.       Trovato, Frank, The Effects of Marital Dissolution on Suicide: The Canadian Case, Discussion Paper No. 42 (Edmonton: University of Alberta, 1995).

g.         Sociology of Religion

1.         Bromley, David G., Anson D. Shupe, Jr. & J.C. Ventimiglia, "Atrocity Tales, the Unification Church, and the Social Construction of Evil" (1979) 29:3 Journal of Communication 42-53;

2.         Bromley, David G., "Linking Social Structure and the Exit Process in Religious Organizations: Defectors, Whistle-blowers, and Apostates" (1998) 37:1 Journal for the Scientific Study of Religion 145-160;

3.         Lewis, James R. & David G. Bromley, "The Cult Withdrawal Syndrome: A Case of Misattribution of Cause?" (1987) 26:4 Journal for the Scientific Study of Religion 508-522;

4.         Wright, Stuart A., "Reconceptualizing Cult Coercion and Withdrawal: A Comparative Analysis of Divorce and Apostasy" (1991) 70:1 Social Forces 125-145.

h.         Sociological Studies of “Brainwashing”

1.         Barker, Eileen, "And the Wisdom to Know the Difference? Freedom, Control and the Sociology of Religion" (2003) 64:3 Sociology of Religion 285-307;

2.         Richardson, James T, "Cult/Brainwashing Cases and Freedom of Religion" (1991) 33 Journal of Church & State 55-74;

3.         Richardson, James T. & Massimo Introvigne, "'Brainwashing' Theories in European Parliamentary and Administrative Reports on 'Cults' and 'Sects'" (2001) 40:2 Journal for the Scientific Study of Religion 143-168.

i.          Books

1.         Gordon, Sarah Barringer, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (Chapel Hill, NC: University of North Carolina Press, 2002);

2.         Ryan, Christopher & Cacilda Jethá, Sex at Dawn: The Prehistoric Origins of Modern Sexuality (New York: Harper, 2010).

Exhibits to Affidavit #2 of Brianna Luca Sworn 9 February 2011

1.         Card, Brigham Y. et al., The Mormon Presence in Canada (Edmonton: University of Alberta Press, 1990), ch. 14;

2.         Butler, T.R. Fitzwalter & Marston Garsia, Archbold's Pleading, Evidence & Practice in Criminal Cases, 32^nd ed. (London: Sweet & Maxwell Ltd., 1949), ch. VI;

3.         Morris, J.H.C., "The Recognition of Polygamous Marriages in English Law" (1953) 66 Harvard Law Review 961-1012.

Exhibits to Affidavit #3 of Brianna Luca Sworn 17 March 2011

1.         Zukewich, Nancy & Melissa Cooke-Reynolds, "Days of our lives: time use and transitions over the life course", Transitions to Union Formation, 1998, No. 2 (Statistics Canada: 2003);

2.         Clark, Warren, "Delayed transitions of young adults" (Statistics Canada: 2009);

3.         Le Bourdais, Celine, Ghyslaine Neill & Pierre Turcotte, "The changing face of conjugal relationships" (Spring 2000) 56 Canadian Social Trends (Statistics Canada - Catalogue No. 11-008);

4.         “Study: Interreligious unions”, The Daily (Statistics Canada) (3 October 2006);

5.         U.K., H.C., “Report of the Affairs Committee on Domestic Violence, Forced Marriage and ‘Honour’-Based Violence”, Sixth Report of Session 2007-08, Vol. I;

6.         Australia, Attorney’s-General Department, Criminal Justice Division, “Discussion Paper: Forced and Servile Marriage”.

Exhibits to Affidavit of Audrey Lim Sworn 23 November 2010

1.         Croutier, Alev Lytle, Harem: The World Behind the Veil (New York: Abbeville Press, 1989);

2.         Fleming, Caroline B., '"Even in Dreams, They Are Coming': Islamic Fundamentalism and the Education of Women in Afghanistan" (2005) 11:3 William & Mary Journal of Women and the Law 597-617;

3.         Hallock, Meghan, "A Policy of Mediocrity: A Review of United States Policy Concerning the Women of Afghanistan" (2005) 11:3 William & Mary Journal of Women and the Law 481-504;

4.         Johnson, Heather, "There Are Worse Things Than Being Alone: Polygamy in Islam, Past, Present, and Future" (2005) 11:3 William & Mary Journal of Women and the Law 563-596;

5.         Peiffer, Elizabeth, "The Death Penalty in Traditional Islamic Law and as Interpreted in Saudi Arabia and Nigeria" (2005) 11:3 William & Mary Journal of Women and the Law 507-539;

6.         Rodgers-Miller, Brooke D., "Out of Jahiliyya: Historic and Modern Incarnations of Polygamy in the Islamic World" (2005) 11:3 William & Mary Journal of Women and the Law 541-562;

7.         Tiefenbrun, Susan W., "Sex Slavery in the United States and the Law Enacted to Stop It Here and Abroad" (2005) 11:3 William & Mary Journal of Women and the Law 317-386;

8.         Ward, Cassiah M., "I Now Pronounce You Husband and Wives: Lawrence v. Texas and the Practice of Polygamy in Modern America" (2004) 11:1 William & Mary Journal of Women and the Law 131-151.

Exhibits to Affidavit of Carol Jean Cosco Sworn 29 September 2010

a.         Academic Periodicals

1.         Barker, Meg & Ani Ritchie, “Hot bi babes and feminist families: Polyamorous women speak out” (2007) 8:2 Lesbian & Gay Psychology Review 141-151;

2.         Black, D. Marissa, “Beyond Child Bride Polygamy: Polyamory, Unique Family Constructions, and the Law” (2006) 8 Journal of Law & Family Studies 497-508;

3.         Emens, Elizabeth F., "Monogamy's Law: Compulsory Monogamy and Polyamorous Existence" (2004) 29 New York University Review of Law & Social Change 277-376;

4.         Sheff, Elisabeth, “Poly-Hegemonic Masculinities” (2006) 9:5 Sexualities 621-642;

5.         Sheff, Elisabeth, “Polyamorous Women, Sexual Subjectivity and Power” (2005) 34:3 Journal of Contemporary Ethnography 251-283;

6.         Strassberg, Maura I., "The Crime of Polygamy" (2003) 12 Temple Political & Civil Rights Law Review 353-431;

7.         Strassberg, Maura I., "The Challenge of Post-Modern Polygamy: Considering Polyamory" (2003) 31 Capital University Law Review 439-563;

8.         Tweedy, Ann E., “Polyamory as a Sexual Orientation” (2010) Michigan State University College of Law Legal Studies Research Paper Series, No. 08-15;

9.         Peabody, Shelley Ann, “Alternative Life Styles to Monogamous Marriage: Variants of Normal Behavior in Psychotherapy Clients” (1982) 31 Family Relations 425-434;

10.       Weitzman, Geri, “Therapy with Clients Who Are Bisexual and Polyamorous” (2006) 6:1/2 Journal of Bisexuality 137-164.

b.         Popular Periodicals

1.         Bennett, Jessica, “Only You. And You. And You.” Newsweek (29 July 2009).

c.         Academic Books

1.         Barker, Meg & Darren Langdridge, eds., Understanding Non-Monogamies (New York: Routledge, 2010).

d.         Popular Books

1.         Anapol, Deborah, Polyamory in the Twenty-First Century: Love and Intimacy with Multiple Partners (Lanham, Maryland: Rowman & Littlefield Publishers, Inc., 2010);

2.         Easton, Dossie and Janet W. Hardy, The Ethical Slut: A Practical Guide to Polyamory, Open Relationships & Other Adventures, 2^nd ed. (Berkeley: Celestial Arts, 2009);

3.         Taormino, Tristan, Opening Up: A Guide to Creating and Sustaining Open Relationships (San Francisco: Cleis Press 2008).