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Reflecting Culture: Polygamy and the Charter


Carissima Mathen


University of Ottawa - Common Law Section

2012

Supreme Court Law Review, 57, 2012

Abstract:     
The Canadian Charter of Rights and Freedoms states as a general interpretative principle that its substantive provisions 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 time 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 this article, 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.

Number of Pages in PDF File: 18

Keywords: Canada, Constitutional Law, Charter of Rights, Criminal Law, women, polygamy

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Date posted: February 17, 2013  

Suggested Citation

Mathen, Carissima, Reflecting Culture: Polygamy and the Charter (2012). Supreme Court Law Review, 57, 2012. Available at SSRN: http://ssrn.com/abstract=2219339

Contact Information

Carissima Mathen (Contact Author)
University of Ottawa - Common Law Section ( email )
57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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