Do You Really Want Them All Charged - Canadian Editorial

http://www.theglobeandmail.com/servlet/story/RTGAM.20080805.wcopoly05/BN...

SUSAN DRUMMOND

From Tuesday's Globe and Mail

August 5, 2008 at 8:35 AM EDT

There is a general rumbling afoot in Canada about laying polygamy charges against individuals within certain religious communities across Canada. But there are some things Canadians need to know about our Criminal Code's "Offences Against Conjugal Rights" before we can be sure we really want to open that particular Pandora's box. One thing to ask may be whether you, or anyone you care about, has committed one of these indictable offences carrying liability of up to five years in prison. In the spirit of the poem "They came first for the communists...," let me say that I have committed polygamy.

How is it that a Canadian professor of family law violated a very grave criminal prohibition - and yet remains on the lam; teaching the law, no less?

The first thing to know is that Canadians are not a morally squeamish group when it comes to sex - or sex and marriage. Group sex, the Supreme Court of Canada has held, even group sex in swingers bars in downtown Toronto, does not offend Canadian moral sensibilities. Nor does it offend the institution of marriage. For a divorce based on adultery, neither spouse can have condoned the other's extramarital sex - and swinging with your spouse at Ménage à Quatre almost certainly constitutes condonation. Swingers who want a divorce have to wait out one year's separation like the rest of us.

The second thing to bear in mind is that the polygamy provision has been invoked exactly once in the past century - in 1937. A man was charged with polygamy because he had an adulterous affair. The court held that adultery is not inconsistent with monogamy - and both he and the rest of our society have been free thereafter to have adulterous affairs with criminal impunity. Since the Divorce Act of 1986, spouses also have been free to commit adultery without consequence to determining child custody, support or division of property. Canadian law has left the adulterous to little more than the wrath of their spouses.

The third thing to know is the actual definition of both bigamy and polygamy in the Criminal Code. Amongst other elements, the offences include everyone in Canada who, being married, goes through a form of marriage with another person (bigamy) and everyone who enters into any kind of conjugal union with more than one person at the same time, whether or not this conjugal union is by law recognized as a binding form of marriage (polygamy).

Religious marriage (Catholic, Hindu, Muslim, Jewish etc) is a "form of marriage." Canadians can be civilly divorced and yet remain religiously married. The state, having no place in the religions of the nation, carries out only civil divorce. All Canadians, regardless of religious background, have equal access to the Divorce Act that allows for divorce on the grounds of the breakdown of the marriage (established by living separate and apart for one year, or by the adultery or cruelty of the other spouse). Catholics can never divorce religiously - and yet they can (and do) divorce and remarry civilly. Those who have done so (along with other Canadians who have not put an end to their religious marriage before remarrying civilly) are both in multiple conjugal unions and multiple forms of marriage. So, should the state decide to sweep up all those polygamists, many of us might be astonished at how many of our acquaintances and loved ones would be carted away.

Where I, and countless other Canadians, unwittingly committed polygamy derives from the inclusion of "any kind of conjugal union" in the definition of polygamy.

Like 38 per cent of Canadians, I both married and divorced. Like many Canadians, I was somewhat nonchalant about the institution of marriage. As common-law relationships gather about them all of the benefits of marriage and increasingly little social stigma, marriage has become a principally symbolic institution. While sorting out the incidentals of divorce (custody, support, etc.) was important to me, getting the actual divorce was not. Unlike the other weighty elements of Canadian family law, all a divorce enabled me to do was to remarry civilly. As I had no desire to remarry, I was living separate and apart from my "husband" for six years before I got a divorce (in order that he might remarry). My marriage was, if nothing else, the paradigmatic "conjugal union."

Without going into details, two years after my separation, I entered another "conjugal union" with my partner of the last seven years. This was not hard to do. The definition of "conjugal union" in Canadian law is broad enough that just about any kind of detail has the potential to be simultaneously sordid and banal.

What is "any kind" of conjugal union? On this point, the criminal law is silent. In family law, the definition of conjugal union used to include things such as the sharing of meals, sexual exchange, watching TV together (I kid you not) and the delivery of domestic services. With sexual and domestic services sitting uncomfortably with the obligations of conjugality, eating pizza with someone, while watching Sopranos reruns, could catch quite a few of us off guard.

In all fairness, I might call myself in to Crime Stoppers. If I am free to go, then with the current gapingly broad definition of an Offence Against Conjugal Rights, doesn't the state have an unfettered discretion to indiscriminately go after religious communities and individuals?

Professor of family law at Osgoode Hall Law School