Expert Witness - Dr. Rebecca Cook

Decriminalizing polygamy would be a breach of Canadian obligations

by Daphne Bramham (Vancouver Sun)

Canada would be breaching its obligations under various international human rights conventions and treaties if it were to legalize or even decriminalize polygamy.

In its most recent report, the United Nations human rights committee described polygamy as “inadmissible discrimination against women and definitely should be abolished,” according to Prof. Rebecca Cook, who chairs the University of Toronto’s human rights law section.

Cook was testifying Thursday in BC Supreme Court in the constitutional reference case to determine whether Canada’s ban on polygamy is a breach of constitutional guarantees of religious freedom and freedom of expression.  

She told Chief Justice Robert Bauman that none of the treaties consider polygamy as anything other than harmful.  As a signatory to the treaties, Cook says Canada is not only obligated to eliminate gender discrimination but also take measures to eliminate stereotyping.  The reason, she says, is that the patriarchal structure of polygamous marriages — which are almost universally men with multiple spouses — “offends the women’s dignity” because it places women in a position of inferiority and is “inadmissible discrimination.”

Under cross-examination, Cook said none of the treaties deals directly with the issue of polygamy, although it is addressed in concluding comments by the committees charged with tracking states’ compliance.  In her summary of committee comments, Cook noted that the trend is toward abolishing polygamy as inherently harmful to the rights of women and children.

Should the court strike down Canada’s polygamy law, Canada would be the only western liberal democracy to decriminalize its practice.  However, it was pointed out by Ludmilla Herbst — a lawyer for the court-appointed amicus curiae who is arguing in favour of decriminalization — that Canada would still have a criminal sanction against bigamy.

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My Comment:  As we approach the end of a lengthy list of expert witnesses, Dr. Cook brought a wide breadth of knowledge of International Law and Conventions to the hearing.  The more I hear, the more I wonder what Judge Bauman's reasons will be.  I certainly don't envy him his task. 

Canada's law against polygamy puts into the spotlight just one of the many forms of "relationship" that have gained acceptance since the law was written in the 1890's.  If, as a result of this reference, polygamy and bigamy remain illegal, should not  polyamory and polyandry join them on the list of proscribed activities?