INTRODUCTION AND BRIEF DESCRIPTION
Every marriage is considered valid under this section, unless proven otherwise by the accused.
SECTION WORDING
290(4) Every marriage or form of marriage shall, for the purpose of this section, be deemed to be valid unless the accused establishes that it was invalid.
EXPLANATION
Section 290(4) of the Criminal Code of Canada relates to the criminal offense of bigamy. Bigamy is the act of marrying someone while still being legally married to someone else. This section specifically deals with the evidence required in a bigamy case. According to this section, any marriage or form of marriage is considered valid unless the accused can prove that it was not valid. This means that if someone is accused of bigamy, they have the burden of proving that one or both of their marriages were not legally valid. To successfully defend a bigamy charge, the accused must show that their previous marriage was either annulled or dissolved by divorce or death. If they cannot prove this, they may be found guilty of bigamy. The purpose of this section is to protect the institution of marriage and prevent individuals from entering into multiple marriages without properly dissolving their previous union. By placing the burden of proof on the accused to show that their previous marriage was invalid, it incentivizes individuals to ensure they follow legal procedures when entering and exiting marriages. Overall, section 290(4) is an important component of bigamy laws in Canada and ensures that individuals cannot use technicalities to escape prosecution.
COMMENTARY
Section 290(4) of the Canadian Criminal Code deals with the offence of polygamy. It states that every form of marriage, including those performed under cultural or religious systems, will be considered valid unless the accused can prove otherwise. This means that the burden of proof is on the accused for establishing the invalidity of their marriage. The section was enacted with the aim of criminalizing the practice of polygamy, which refers to the act of being married to more than one person simultaneously. Polygamy is considered a serious offence in Canada and is punishable by up to 5 years in prison. The offence of polygamy applies equally to both men and women, regardless of their cultural or religious beliefs. The Criminal Code deems all marriages to be valid unless proven otherwise for a good reason. It is because Canada recognizes the legality of marriages conducted outside Canada. In addition, many cultures and religions recognize various forms of marriage that may or may not align with Canadian law. By deeming every marriage to be valid, the Canadian government shows its respect for the traditions and cultures of its citizens, and acknowledges that different arrangements can be culturally and religiously valid. By placing the burden of proof on the accused, the Code ensures that it is not too easy to escape conviction if the defendant is unable to prove the invalidity of their marriage. Polygamous marriages have been shown to often occur in secrecy, and therefore, if the burden of proof were placed on the prosecution, it would be very difficult to obtain convictions. However, this same clause has been criticized by some as it may also render vulnerable individuals and their children unable to escape polygamous relationships. As a result, some cases have come to the courts where individuals are unable to prove the invalidity of their marriage because they lack Canadian documentation to support their claim. This results in the accused escaping the consequences of having multiple spouses, which can lead to legal and social complications. Another concern with Section 290(4) is how secular and Western courts approach various marriages. In cases where religious or cultural norms are in conflict with Canadian law and judicial rulings, it can be challenging to balance the individual's freedoms to practice their religion and the interests of the state in promoting equality and human rights. For example, when a polygamous situation arises and the individuals affected appeal to a court to invalidate the marriage, in cases where there is no statute or law explicitly invalidating the marriage, it becomes difficult to prosecute the accused for polygamy without infringing on religious freedoms. In conclusion, Section 290(4) of the Criminal Code of Canada serves to discourage the practice of polygamy, which is best seen through a lens that concerns the protection of families and human rights. It aims to address the issue in a way that takes into account the diversity of cultural and religious beliefs in society, but it has also been critiqued for its potential adverse impact on vulnerable individuals. It is important that Canadian law remains vigilant on issues such as polygamy and continuously reviews how the law balances conflicting interests.
STRATEGY
Section 290(4) of the Criminal Code of Canada deals with the offence of bigamy or polygamy and the issue of the validity of the alleged marriage(s). When charged with this offence, there are certain strategic considerations that must be taken into account to establish the validity or invalidity of the alleged marriages. Here are some of the strategic considerations and possible strategies that could be employed: 1. Proof of Marriage: The first consideration is the proof of the alleged marriage(s), which is crucial to establishing their validity or invalidity. The accused may need to provide documentary evidence, such as marriage certificates, divorce orders, or other legal documents, to establish the existence and status of the alleged marriage(s). In some cases, the testimony of witnesses or experts may also be required to establish the validity or invalidity of the marriage(s). 2. Validity of Marriage: The second consideration is the validity of the alleged marriage(s). The accused may need to establish that the marriage(s) were invalid for various reasons, such as lack of consent, fraud, duress, or incapacity. This may require the accused to provide evidence to support their claim, such as medical reports, witness statements, or expert opinions. 3. Jurisdictional Issues: The third consideration is the jurisdictional issues that may arise in a case involving bigamy or polygamy. The accused may need to establish that the alleged marriage(s) occurred outside of Canada or in a jurisdiction where polygamy is legal, in order to defend against the charge of bigamy or polygamy under Canadian law. 4. Sentence Mitigation: The fourth consideration is the potential sentence that the accused may face if convicted of bigamy or polygamy. The accused may need to develop a strategy to mitigate the sentence, such as demonstrating remorse, accepting responsibility, or seeking rehabilitation. 5. Pre-Trial Negotiation: Finally, the accused may consider engaging in pre-trial negotiations with the prosecution to resolve the case without going to trial. This may involve negotiating a plea bargain, which could result in a reduced charge or sentence for the accused. In conclusion, dealing with section 290(4) of the Criminal Code of Canada requires careful consideration of the proof of marriage, validity of marriage, jurisdictional issues, potential sentence, and pre-trial negotiation strategies. As such, an accused person for bigamy or polygamy charges must work with a competent criminal lawyer with experience in dealing with bigamy and polygamy charges.