As Canada watches, polyamory group delivers final arguments

Yesterday attorney John Ince for the Canadian Polyamory Advocacy Association (CPAA) presented his closing arguments in the case testing the legality of Canada's broad anti-polygamy law¹.

No matter how the judge rules in the coming weeks, the CPAA's intervention in the case has greatly raised public awareness across Canada of the reality of poly relationships and families, and of polyamory's underlying philosophy and ideals.

The Canadian Press reports this morning:

Polyamorists' relationships wrongly targeted: lawyer

Canada's ban on polygamy unfairly criminalizes healthy relationships involving multiple spouses, a lawyer representing the Canadian Polyamory Advocacy Association told a special hearing in B.C. Supreme Court on Wednesday.

The group is among several interveners in the landmark constitutional case in B.C., which was prompted by allegations of abuse in the isolated [Fundamentalist Mormon]religious sect of Bountiful, B.C.

But the group's lawyer, John Ince, said the shocking stories that have emerged from Bountiful don't reflect the lives of hundreds of polyamorists across Canada, who say their relationships are secular, egalitarian and are part of mainstream society.

He said that's why the provincial and federal governments have largely ignored polyamory in the complex discussion of polygamy, and have offered no evidence that polyamory causes anyone harm.

"There's been a dearth of evidence in this case respecting polyamory -- I guess they [the governments] are avoiding attracting [attention] to their Achilles heel," Ince said during his closing arguments.

"There is no evidence of harm that justifies the criminalization of polyamorist families."

Lawyers for the provincial and federal governments have offered contradictory opinions on whether multi-partner relationships outside of a religious context would be illegal under the law....

...Ince said it was difficult to pinpoint exactly how many polyamorists there are in Canada, but he noted the association conducted a survey and received 560 replies from people who said they were living with multiple partners in polyamorist relationships.

They include men living with multiple women, women with multiple male partners, and same-sex relationships, said Ince.

...Ince's group filed written affidavits from several polyamorists across the country, who described happy families, sometimes with children, where spouses are equal, and resources and duties such as childcare are shared.

"All of this contrasts dramatically with the type of multi-partner conjugality that has been the focus of this case, which is patriarchal polygamy," he said, referring to Bountiful. "It is that patriarchal polygamous style of multi-party conjugality that was known to the lawmakers in the 1890s. They could not anticipate the development of the post-modern institution of polyamory."...

Read the whole article (April 14, 2011).

An earlier Canadian Press report:

VANCOUVER - A lawyer for so-called polyamorists says their non-religious, egalitarian relationships are the "Achilles heel" in the governments' defence of the anti-polygamy law.

The Canadian Polyamory Advocacy Association represents relationships involving more than two people who are treated equally and are part of mainstream society....

The provincial and federal governments have justified the law by pointing to allegations of abuse in Bountiful, but Ince says those stories don't describe the caring, committed relationship of polyamorists.

He says the current polygamy law appears to criminalize polyamorists, which he says makes it difficult for them to live openly and puts them in constant fear of authorities, especially when it comes to custody of their children.

The whole article (April 13, 2011). Much media attention is also going to the lawyer for the Fundamentalist Mormons, who also presented his closing arguments yesterday.

Here are Google News's current news reports on the whole case. Here's the subset of these articles that mention polyamory.

Read the complete CPAA's closing submissions. This document will be a fine running start for any similar case that may come up in the United States.

Here's the CPAA's Facebook page.

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The previous week, the "amicus curiae" in the case — the lawyer appointed by the court to argue that the anti-polygamy law is unconstitutional — gave his own wrapup. From a news article:

By James Keller, The Canadian Press

VANCOUVER - Canadians in relationships with multiple partners shouldn't be turned into criminals because of alleged abuses in a small, isolated community in British Columbia, says a lawyer arguing against the anti-polygamy law.

George Macintosh, a lawyer appointed to oppose the government at constitutional hearings, said Monday that the current law against polygamy is far too broad. He said it targets not just polygamous men who abuse women and children, but also people in multi-partner relationships that aren't harming anyone.

Much of the evidence in the case has focused on the small, religious sect of Bountiful, B.C., where residents follow the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS.

But Macintosh said the question isn't whether bad things are happening in a single community.

"The attorneys (general of B.C. and Canada) focused virtually the whole case on what would clearly be criminal behaviour by some FLDS people," Macintosh told Chief Justice Robert Bauman during closing arguments.

"I would urge you to redirect the spotlight to what is the central issue, and that is: Is Section 293 (of the Criminal Code) constitutionally justifiable? ... It would expose some (polyamourists) to criminal prosecution only for being in an open and honest and committed relationship."

...He also noted even supporters of the law can't agree on what exactly it prohibits.

While the B.C. government argued the anti-polygamy law only targets men with multiple wives, and not women with multiple husbands, the federal government insisted it outlaws all forms of polygamy. Several interveners said the polygamy law only applies in cases involving exploitation and abuse.

"And they did that (offered varying definitions) because, in my submission, they recognize that the plain and ordinary meaning of Section 293 cannot survive" a challenge under the Charter of Rights and Freedoms, Macintosh said....

He brushed aside the suggestion that striking down the anti-polygamy law would suddenly force polygamous marriage onto society. Macintosh compared the case to the decriminalization of homosexuality in 1969. Even though homosexuality was removed from the Criminal Code, same-sex marriage wasn't legally recognized for another four decades.

"If Section 293 is struck down, society as a whole and Parliament will decide on the appropriate next steps."

Read the whole article (April 4, 2011).

Carole Chanteuse of the CPAA writes, "I love how the Amicus keeps talking about how the [attorneys general's] arguments and interpretations would still capture some of those who [we represent]. We are an unmistakably huge factor in this court case."

Last Monday evening (April 11th), members of the CPAA and others held a public forum in Vancouver titled "What Is Polyamory?". More than 170 people attended, and according to observers present, most of these were polyamorous themselves. A similar forum in Victoria last November drew 100 people. These numbers alone exceed the Fundamentalist Mormon polygamists in the community the prosecutors are targeting.

Another story on the amicus's arguments, and the continuing confusion over who the law affects or should affect:

Criminal Code on polygamy must change if B.C. court strikes down law: Macintosh

By Daphne Bramham, Vancouver Sun

VANCOUVER - If the B.C. Supreme Court strikes down Canada's polygamy law, the court-appointed amicus said Monday it must be society as a whole and Parliament in particular that determines the next step.

Lawyer George Macintosh made his comments Monday at the beginning of his closing argument in the constitutional reference case to determine whether the Criminal Code section that prohibits polygamy is valid.

...Macintosh's position is that the law must be struck down. The reason, he said, is that Section 1 of the Charter of Rights and Freedoms allows only for “minimal impairment” of guaranteed rights and freedoms.

But Macintosh said the polygamy law is so broad that last week the five defenders of the law argued for five different interpretations of it.

● The attorney general of B.C.'s lawyer argued that it should only apply to men with more than one spouse, not women.

● The attorney general of Canada's lawyer argued that it applies only to people who have some sort of ceremony to formalize their plural relationships.

● WestCoast LEAF wants it interpreted to mean only multi-party, conjugal relationships that are exploitive.

● The Canadian Coalition for the Rights of the Child said it shouldn't criminalize children,

● while the B.C. Teacher's Federation argued that it shouldn't criminalize women.

Macintosh's associate Tim Dickson argued that Parliament's intent both when the law was written in 1890 and rewritten in 1954 was to capture everyone in a multi-partner, conjugal union.

He pointed out that the polygamy section of the Criminal Code begins “Every one who . . .” leaving no room to exempt wives who only have conjugal relations with a shared husband, children, all-men or all-women multi-partner relationships or even immigrants who were legally married to multiple partners in other countries.

What Dickson did agree, though, is that having an affair doesn't make someone a polygamist. Conjugal unions in family law has been defined by the courts as meaning that it is a relationship of three or more years with the partners sharing shelter, providing economic support or giving the “societal perception” of being together....

Read the whole article (April 5, 2011).

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¹ Here's the entire text of the law under dispute (Section 293 of Canada's Criminal Code):

(1) Every one who
        (a) practices or enters into or in any manner agrees or consents to practice or enter into
               (i) any form of polygamy, or
               (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or
        (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Evidence in case of polygamy
(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.

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