Criminal Code of Canada - section 290(2) - Matters of Defence

section 290(2)

INTRODUCTION AND BRIEF DESCRIPTION

Exceptions to the crime of bigamy in Canada, including believing the spouse is dead or absent for seven years, being divorced, or the former marriage being declared void by a court of competent jurisdiction.

SECTION WORDING

290(2) No person commits bigamy by going through a form of marriage if (a) that person in good faith and on reasonable grounds believes that his spouse is dead; (b) the spouse of that person has been continuously absent from him for seven years immediately preceding the time when he goes through the form of marriage, unless he knew that his spouse was alive at any time during those seven years; (c) that person has been divorced from the bond of the first marriage; or (d) the former marriage has been declared void by a court of competent jurisdiction.

EXPLANATION

Section 290(2) of the Criminal Code of Canada outlines certain situations where a person cannot be charged with bigamy. Bigamy is the act of marrying a person while being legally married to someone else. In Canada, bigamy is a criminal offense that is punishable by up to five years in prison. Subsection (a) states that if a person goes through a form of marriage in good faith and with reasonable grounds to believe that their spouse is deceased, they will not be charged with bigamy. This provision recognizes that in some cases, a person may be unaware of their spouse's death and proceed with a new marriage. Subsection (b) provides an exception if the spouse of the person has been continuously absent for seven years immediately preceding the new marriage. However, if the person knew that their spouse was alive at any time during those seven years, they cannot rely on this exception. Subsection (c) allows for a person to remarry if they have been legally divorced from their first marriage. This recognizes that the first marriage has been legally dissolved and therefore, the person is free to marry again. Subsection (d) applies if the former marriage has been declared void by a court of competent jurisdiction. This means that the marriage was never legally valid in the first place due to some defect, such as if one of the spouses was already married or if there was a lack of consent. Overall, Section 290(2) recognizes that there may be certain situations where a person may not be aware of their legal marital status or may have legally ended their first marriage. However, it also emphasizes the importance of following the legal procedures for marriage and divorce in Canada.

COMMENTARY

Section 290(2) of the Criminal Code of Canada sets out circumstances under which a person does not commit the offence of bigamy. This section recognizes that certain situations may arise that would make it reasonable for a person to believe that they are not committing the offence of bigamy. The first exception under subsection (a) is where a person believes, in good faith and on reasonable grounds, that their spouse is dead. This exception recognizes that a person may not be aware that their spouse is still alive, such as in cases where the person has been missing for a long period of time or where the person has been declared dead by authorities. It is important to note that this exception only applies where the belief is reasonable and made in good faith. A person cannot simply claim ignorance of their spouse's whereabouts to evade responsibility for bigamy. The second exception under subsection (b) pertains to situations where a person's spouse has been absent for seven years continuously. This exception recognizes that a person may assume that their spouse has abandoned the marriage and is no longer alive or willing to participate in the marriage. However, this exception only applies where the person did not know or have reason to believe that their spouse was alive at any time during those seven years. This exception is also subject to the requirement that the person must have gone through a form of marriage in good faith. The third exception under subsection (c) applies where a person has been divorced from the bond of the first marriage. This means that the first marriage has been legally dissolved through a court proceeding. In such cases, the person is free to marry again without committing the offence of bigamy, as there is no longer a valid marriage to the first spouse. The fourth exception under subsection (d) applies where the former marriage was declared void by a court of competent jurisdiction. This means that the first marriage was never valid in the first place, such as in cases where one or both parties were already married or the marriage took place under fraudulent circumstances. In such cases, the person is not considered to have committed bigamy by going through a new form of marriage. Overall, section 290(2) recognizes that there may be circumstances where a person could reasonably believe that they are not committing bigamy. This section provides exceptions to the offence of bigamy to ensure that individuals are not punished for genuine misunderstandings or situations beyond their control. However, it is important to note that these exceptions should not be abused as a way to evade responsibility for bigamy. Furthermore, any claim of one of these exceptions must be supported by evidence, and the person's belief must be reasonable and made in good faith. Failure to meet these requirements could result in criminal liability for bigamy. In conclusion, section 290(2) of the Criminal Code of Canada provides important exceptions to the offence of bigamy. These exceptions recognize that there may be situations where a person could reasonably believe that they are not committing bigamy. However, it is crucial that these exceptions are not abused and that any claims of these exceptions are supported by evidence and made in good faith.

STRATEGY

The above section of the Criminal Code of Canada outlines the circumstances under which a person can go through a form of marriage without committing the offence of bigamy. Bigamy is a serious offence in Canada and can result in imprisonment for up to five years. Therefore, it is crucial for individuals and their legal representatives to carefully consider the circumstances in which they can rely on section 290(2) to avoid prosecution. One of the key strategic considerations when dealing with this section of the Criminal Code is to ensure that the person going through a form of marriage has a good faith belief that their former spouse is dead or has been continuously absent for seven years. This requires conducting thorough investigations to establish the whereabouts of the former spouse and to obtain evidence that supports the belief that they are dead or have been absent for seven years. Another potential strategy is to obtain a divorce before going through a form of marriage. This requires a careful assessment of the legal requirements for divorce and ensuring that all necessary steps are taken to obtain a divorce before the second marriage takes place. This strategy is particularly relevant if there is a risk that the former spouse may return after a period of absence, as it eliminates any ambiguity about the legal status of the first marriage. If the former marriage has been declared void by a court of competent jurisdiction, this can also be relied upon to avoid prosecution for bigamy. However, it is important to ensure that the court's decision is valid and that all necessary steps were taken to obtain the declaration of nullity. In some cases, it may be necessary to seek legal advice to determine whether section 290(2) can be relied upon as a defence to a bigamy charge. This is particularly important if there are complex legal or factual issues involved, such as disputes over the validity of a divorce or the availability of evidence to support a good faith belief that the former spouse is dead or absent. Overall, the key strategic considerations when dealing with section 290(2) of the Criminal Code of Canada involve conducting thorough investigations, obtaining divorce or nullity orders where necessary, and seeking legal advice where appropriate. By carefully navigating these issues, individuals can reduce the risk of being charged with bigamy and ensure that they are in compliance with the law when entering into a second marriage.