Reflecting Culture: Polygamy and the Charter

The Canadian Charter of Rights and Freedoms states as a general interpretative principle that its rights and freedoms must be applied so as to preserve and maintain the multicultural heritage of Canadians. This principle stands with other broad ideals of our political community — such as pluralism, mutual respect and human dignity — which constitute important aspects of our legal culture. Any society that seeks to be diverse yet bound by common values will face deep challenges, as conflicts emerge over the meaning of “a good life”. at times, such controversies can appear to raise existential issues for the society in question. In this paper I explore one such controversy: what to do about the offence of polygamy. In 2011, in an unprecedented court proceeding, the British Columbia Supreme Court considered the constitutionality of section 293 of the Criminal Code, which penalizes all forms of polygamous unions. In an advisory opinion the Supreme Court concluded that in all but one respect the provision does not violate the Charter’s fundamental freedom of religion, or the principles of fundamental justice. In the brief confines of this paper, I interrogate the opinion as a false recounting of cross-cultural clash. The polygamy debate reveals another aspect of cultural contestation, not between cultures but within the same one — over the role of criminal law, our view of each other and our commitment to the Charter’s underlying ideals