One of the arguments advanced against the Marriage (Same Sex Couples) Bill, notably by Lord Carey of Clifton, has been that it would set a “dangerous precedent” that could lead to sibling marriage or polygamy. The Government’s immediate response was that the United Kingdom does not recognise polygamous marriages and that that is not going to change – to which the critics’ riposte was, more or less, “Ah, but what happens when the issue gets to Strasbourg? You just can’t trust the ECtHR”.
By a curious coincidence, the issue has just come up in Canada and has received an immensely long (though, it should be said, immensely learned) reply.
Under s 293 of the Criminal Code of Canada (Revised Statutes of Canada c C-46 1985) the practice of polygamy is prohibited; and British Columbia asked its Supreme Court to declare whether or not that prohibition was consistent with the Canadian Charter of Rights and Freedoms, Part 1, Constitution Act 1982.
In Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588, Bauman CJ agreed [para 1178] that the issue engaged s 7 of the Charter, as follows:
“Everyone has 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”.
Nevertheless, he concluded that the Attorney General of Canada and the Attorney General of British Columbia had demonstrated a reasoned basis for the proposition that polygamy (especially polygyny ) was “inherently harmful to the participants, to their offspring and to society generally” [para 1182].
As to freedom of religion, he concluded that the case was about competing fundamental rights under the Charter [para 1097] and concluded that s 293 violated the religious liberty of those persons with religious convictions about the appropriateness of polygamy “in a manner that is non-trivial and not insubstantial” [para 1098]. He then gave very short shrift to the proposal that the ban on polygamy engaged the right to freedom of expression [paras 1099–1102].
As to freedom of association, Parliament had not “targeted associational conduct because of its concerted or associational nature”: it had “targeted polygamy because of the physical, psychological and social harms perceived to be associated with the practice” [para 1126]. He therefore rejected the contention that s 293 infringed s 2(d) of the Charter [para 1127].
As to liberty and security of the person, he accepted that s 7 of the Charter was triggered in light of the potential for imprisonment under s 293. He rejected the challengers’ arguments that polygamy was plainly not harmful in and of itself and that consensual and harmless adult polygamous unions did exist [para 1181] since, as noted previously, the Attorneys General had demonstrated a reasoned basis for the harm done by polygamy [para 1182]. Nor was it necessary for him to decide whether consent as a defence to criminal liability rose to the level of a principle of fundamental justice, since
“[e]ven 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 … cannot consent to their situation, which includes exposure to the increased risk of harms that flow from their parents’ marital relationship” [para 1184].
As to the issue of equality, he rejected the argument that Parliament had drawn a distinction on the basis of marital status by criminalising polygamists specifically, even though “polyamorists” [ie those in informal multi-party unions] engaged in similar conduct but did not come within the ambit of s 293. He concluded that “… 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” [para 1266].
In short, s 293 as generally applied did not violate the terms of the Charter. However:
“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’… [para 1356]
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. [T]he Attorneys General have not met the burden of demonstrating that this infringement is justified in a free and democratic society” [para 1357] .
(For further background, see the CBC’s news report on the case.)
In her recent examination of polygamous marriage Dr Ruth Gaffney-Rhys, of the University of Wales, Newport, notes that
“[t]he Universal Declaration of Human Rights 1948, the European Convention on Human Rights 1953, the International Covenant on Civil and Political Rights 1966, the American Convention on Human Rights 1969 and the Arab Charter on Human Rights 2004, each provide a right to marry, but do not specifically mention monogamy or polygamy.
However, she suggests that
“[i]n Johnston and Others v Ireland  ECHR 17 the applicants (a married man and the woman he wanted to marry) argued that the prohibition against divorce contained in the Irish Constitution at the time, infringed their right to marry. The European Court of Human Rights held that the right to marry does not imply a right to divorce in order to remarry and by analogy would not entail a right to marry polygynously.
Furthermore, it is necessary to take into account the current position of the UK in relation to polygamy, which is more complex than the Government’s immediate response above. In our post Child of Polygamous Marriage Refused Entry to UK we noted that the issue of polygamy is one of policy as much as it is one of law, as outlined in a recent House of Commons Library Note which considers the recognition of polygamous marriages in relation to immigration issues, social security benefits and pension entitlement.
The Attorney General has confirmed that polygamy is not regarded as a specific offence – unlike bigamy, which is a crime in England and Wales under section 57 of the Offences Against the Persons Act 1861. Marriages that take place in the United Kingdom must be monogamous but polygamous marriages are recognized provided that: “the parties [are] domiciled in a country where polygamous marriage is permitted, and must have entered into the marriage in a country which permits polygamy”.
To date, the legal implications of introducing same-sex marriage legislation vis-à-vis polygamy have not been considered in the debates in Parliament nor in associated legal analysis such as Proferssor McCrudden’s considered advice to the Catholic Bishops’ Conference of England and Wales, Human Rights Implications of the Marriage (Same Sex Couples) Bill. Some have suggested that the wide-ranging changes in marriage law in moving away from a one-to-one relationship, whether same-sex or opposite-sex, would militate against its introduction; however, such practical considerations do not address the associated human rights issues and the ECtHR has been unwilling to acknowledge a general right for same-sex marriage. In Schalk and Kopf v Austria  ECHR 1996 and Gas and Dubois v France  ECHR 108 the ECtHR held that the right to marry under Article 12 could not in all circumstances be limited to two persons of the opposite sex but was unwilling to extend this more generally in the absence of any European consensus.
The Canadian Charter of Rights and Freedoms is in many ways a much less comprehensive document than the ECHR: for example, there is no explicit equivalent to Article 8 (private and family life) or Article 12 (marriage). Nevertheless, what Re: Section 293 does demonstrate is that in a mature liberal democracy it is still possible to conclude that a ban on polygamy does not violate modern human rights standards. Moreover, the care with which the Court considered the matter is indicated not only by the exhaustive nature of the judgment but by the conclusion at paras 1356–57 that criminalising such behaviour in relation to young persons does, in fact, violate their Charter rights.
Given that there is no simple read-across from the Charter to the Convention one cannot be certain that the ECtHR would follow the same reasoning as the Supreme Court of British Columbia should the issue arise after the Marriage (Same Sex Couples) Bill and the parallel Scots Bill become law; however, it is a reasonable assumption that Re: Section 293 would be cited in support of the present ban. Moreover, the ECtHR has at its disposal an option not available to the Supreme Court of BC: the margin of appreciation.
Frank Cranmer and David Pocklington
 Polygamy: marriage of more than two persons at the same time; Polygyny: the marriage of one man with more than one woman; Polyandry: the marriage of one woman with more than one man; Polyamory: an umbrella term that describes a romantic and/or sexual relationship involving multiple partners at the same time, the participants of which may or may not consider themselves to be married to each other.
 R Gaffney-Rhys, Polygamy: A Human Right or Human Rights’ Violation?, (2011) 2 Women in Society, Autumn.