It is a criminal offence in Canada to have more than one spouse. Section 293 of the Criminal Code prohibits polygamous relationships. Polygamy is an umbrella term that encompasses polyandry, polygyny, and bigamy.
Polyandry is when a woman has more than one husband and polygyny is when a man has more than one wife.
Bigamy is a legal term defined under section 290 of the criminal code and it prohibits married individuals from marrying again, individuals from marrying someone already known to be married or individuals who marry more than one person simultaneously.
Despite being regarded as morally permissible and practiced by some religions, engaging in any form of polygamy is an indictable criminal offence punishable for an imprisonment term of not more than five years.
The elements the Crown would be required to prove for conviction of the these offences include: (1) a person; (2) who has the intention; (3) to practice or enter into; (4) a marriage with more than one person simultaneously (whether or not that marriage is recognized as a binding form of marriage by law).
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This section not only covers legal marriages but also “conjugal unions” whether or not recognized as a binding form of marriage.
The offence does not require that one of the involved parties to be a minor, or for it to occur in the context of dependence, abuse of authority, an imbalance of power or exploitation.
This has implications on immigrants coming into Canada who have legal polygamous relations outside Canada.
For instance, in Ali v Canada (Minister of Citizen & Immigration),(1998), Mr. Ali was denied entry into Canada because he had applied for permanent residence for both his wives on separate applications.
This formed reasonable grounds to believe that he would practice polygamy in Canada contrary to section 293 of the criminal code and, at the time, section 19(1)(d)(i) of the Immigration Act. Mr. Ali unsuccessfully argued that he would not practice polygamy in Canada by having the two wives in separate residences and in different provinces. It was held that, despite the two wives living apart, the parties would still be in illegal polygamous relations.
There has been a Charter challenge of section 293 of the Criminal Code (Reference re Criminal Code of Canada (B.C.) (2011). It was held that while section 293 infringes on Freedom of Religion, a human right guaranteed by section 2(a) of the Charter. It is saved under section 1 of the Charter that allows for reasonable limits allowed by law that can be demonstrably justified in a free and democratic society.
In response to this challenge the court held that this is a justifiable limit under section 1 of the Charter due to the harm caused by polygamy such as harm to children, women, society and the institution of monogamous marriage.
The court did limit the application of section 293 to exclude minors between 12 and 17 years of age (see Reference re Criminal Code of Canada (B.C.)(2011).
If you have been charged with the criminal offence of polygamy or any other criminal offence there are defences available to you. Contact Kostman and Pyzer, Barristers for legal advice!
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