Some thoughts on the Polygamy reference in British Columbia / by Simmon Li

By no means am I at all invested in the debate over polygamy that's been raised in BC, but I want to just write down some thoughts I had about why I think West Coast LEAF's argument about polygamy is convincing. To start, I find the BCCLA argument, in its essence, convincing as well. If it is exploitation of women and children we are concerned about, then we should target those crimes. Polygamy is not necessarily implicated in those things. While this may be the case in theory, in practice such legislation doesn't yield an effective way to substantively protect the rights and equality of women. This is why I think the WC-LEAF position is interesting. They argue, contra the BCCLA, that 293 should be read down to only apply to "exploitative" polygamy. In essence, doing exactly what the BCCLA argues (that is, targeting exploitation) while keeping polygamy on the books. At first glance, this seems silly and complicated for no reason. If it really is exploitation, why not just do that?

The answer is in the due process of law. We ascribe much value to due process, and I think due process is the main consideration for targeting exploitation that happens within polygamy in this way. The problem lies in the fact that exploitative kinds of polygamy tend to happen in extremely well closed off communities. In essence, even if we target the exploitation, the context of the polygamy is one that does not necessarily enable the law, legitimately, to intervene. It would not be due process to simply accuse someone of exploitation of women or children and arrest them. There needs to be probably cause, and such probable cause will not be likely in a closed community, where these women and children are, in essence, indoctrinated.

By keeping exploitative polygamy on the books, it gives society a claim to legitimacy to say to a closed community that what they do is unacceptable. Perhaps this may be construed as a "keep polygamy illegal because we don't like it", but I think that is the wrong reading. Rather, it is that we are targeting these closed communities because of the exploitation of women and children, and that from a procedural point of view, it is much easier to act against these crimes if polygamy (which is the predominate context in which this abuse happens) remains illegal in its exploitative configurations.

I find this argument pursuasive. The BCCLA argument essentially asks for a repeal of S293 based on the practices of a "benign" form of polygamy and I feel is grounded in a frame that ignores the social reality of polygamy. In this sense, I feel the WC-LEAF argument encompasses a much more realistic position on the legality of polygamy. Both the BCCLA and the WC-LEAF agree that the law is over-inclusive. The BCCLA argues that parliament should draft new law (perhaps with the goal of preventing exploitative polygamy), but the case is that we can never count on parliament to be timely on such matters: especially on matters as important as the protection of women and children. Unless there is political pressure, such issues would be set aside and allowed to fetter.

In short, keeping, as WC-LEAF proposes, a read down S293 in the criminal code can serve as a useful vehicle for the state to break into closed communities in cases of egregious violations of human dignity. There are other ways in which a state can make these legitimate claims (for example, public curriculum in education, or health care standards); however, these other ways are inherently based on the obligations that stem from the use of public funds. Should a closed community elect to not use public funds, the state would have no legitimate claim to interest in the human dignity of those members of that closed community. It is not necessarily that they are a closed community that we must target them, but rather, the practices that this closed community elects to indulge in. The case of a striking down of S293 would similarly produce results that would preclude the state's legitimate interest in the rights and equality of people within that closed community. Here, MacKinnon's conception of the state's role is insightful. By "privatizing" polygamy and claiming that it is something in which the state has no business, the state reinforces the inequality of women. This claim is established by recognizing the social practice of any form of plural relationship in the majority usually is in some exploitative configuration. "Benign" practices are saved from the scrutiny of the law by the qualification of "exploitative" and thus, a read down version of S293 that covers only "exploitative" configurations of polygamy or plural relationship is justified under S7 and S15 of the Canadian Charter of Rights and Freedoms. Without staking an interest in women's equality by making sure closed communities are held accountable to societal standards of equality of persons, the state would be failing in one of its key roles as guarantors of equality between genders.