Canada Judge Upholds Anti-Polygamy Law

British Columbia Chief Justice Robert Bauman has just upheld Canada's anti-polygamy law — while narrowing its scope and letting polyamorous families off the hook if they do not commit an overt act of multiple marriage.

From his ruling:

I have concluded that this case is essentially about harm; more specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.... I have concluded that the Attorneys General and their allied Interested Persons have demonstrated a very strong basis for a reasoned apprehension of harm to many in our society inherent in the practice of polygamy as I have defined it in these reasons.

...while s. 293 offends the freedom of religion of identifiable groups guaranteed by s. 2(a) of the Charter... the provision... is demonstrably justified in a free and democratic society.

He also said, "There can be no alternative to the outright prohibition.... There is no such thing as so-called 'good polygamy.'"

However, Bauman specifies that the law refers to actual multiple marriage, which he is at pains to contrast to "relationships" not born in a formal act of community sanctioning. Here, the key part of his ruling seems to be:

[1036] From all of this, I conclude that properly interpreted, s. 293(1)(a) prohibits practicing or entering into a “marriage” with more than one person at the same time, whether sanctioned by civil, religious or other means, and whether or not it is by law recognized as a binding form of marriage.

[1037] The offence is not directed at multi-party, unmarried relationships or common law cohabitation, but is directed at both polygyny and polyandry. It is also directed at multi-party same sex marriages.

Warning: I Am Not A Lawyer.

Here is the (massive) full ruling.

UPDATE: The Canadian Polyamory Advocacy Association (CPAA) has issued a press release with the reaction of its chief counsel, John Ince:

CPAA Relieved That Polyamorist Relationships Are Not Criminalized

VANCOUVER -- November 23, 2011 -- The Canadian Polyamory Advocacy Association (CPAA) is relieved by BC Chief Justice Robert Bauman's decision today clarifying the interpretation of Canada's anti-polygamy law.

“Polyamorists are relieved they can be in loving egalitarian conjugal relationships without criminal sanction,” said CPAA legal counsel, John Ince, “Common law relationships are clearly not prohibited. Polyamorists who are dealing with immigration or family custody issues for instance now need no longer worry about being considered to be criminals”.

Many polyamorous women, as well as men, have multiple partners, and polyamorists think men and women have equal freedom to define their relationships. The CPAA says the decision will relieve most polyamorists but, alarmingly, will harm those who make certain formal commitments.

“The decision still criminalizes a segment of the polyamorous community if they have a marriage ceremony,” said Zoe Duff, a CPAA director and spokesperson. Duff also represents one of the five polyamorous families who provided evidence to the court. The decision clarifies that she is living legally with her two male partners.

“Polyamorous Canadians are responsible citizens who work toward sustaining healthy, loving, egalitarian relationships and it is wrong for Canada's laws to continue to criminalize any of us,” continued Duff, "The number of people in any given relationship is not the issue. The health of the relationship and family is the issue.”

The CPAA intervened in the case because the wording of the 120 year old statute -- which was aimed at patriarchal relationships -- might have caught the modern egalitarian and secular relationships practiced by polyamorists. The judge ruled that the law does not apply to unformalized polyamorous relationships.

The CPAA emphasizes that any abuse or exploitation in family situations can and should be addressed under abuse or exploitation laws -- independently from the question of how many people are living together. The CPAA is concerned that the polygamy law actually makes it more difficult to help victims of abuse and exploitation.

The CPAA's mission is to represent Canadians who are polyamorous. It expects to participate if today’s court decision is appealed, and to work with Parliament on any legislative response. The group says that funding and resource concerns may limit its activities but notes a broad and growing volunteer base across Canada.

For more information on the CPAA, visit polyadvocacy.ca or email info@polyadvocacy.ca
The CPAA is on Facebook at facebook.com/polyadvocacy

I hope they're not putting too sanguine a spin on this. Ince also just put up an article on National Sexlife Journal (Nov. 23, 2011):

Court rules polyamorist relationships are lawful

by John Ince

The BC Supreme Court issued a ruling today that affects the sex-positive community in Canada. The court held that the vaguely worded 120 year old law prohibiting polygamous marriage, and originally aimed at patriarchal religious sects like those at Bountiful BC, does not apply to cohabiting polyamorous families in common law relationships.

This is a big relief to the polyamorous community in Canada. Prior to the court case the poorly worded law could have been interpreted as prohibiting any family with more than two adults.

Some polyamorous families involved in child custody disputes and immigration issues worried that simply by living together they could be considered criminals and thus lose custody of their children or be denied immigration or lose other social benefits.

The court held that the law only prohibits multi-partner families who go so far as to engage in a form of marriage.

I represented the Canadian Polyamorous Advocacy Association in the court case and I believe the decision marks an important step forward in mainstreaming polyamory in Canada.

I compare the legal situation of polyamorous folks to that of gay people in the 1950s. Then the criminal law prohibited gay relationships. But in the 1960s those laws were repealed and in a few decades the gay community grew and thrived in Canada, with gays ultimately receiving the same rights as anyone else.

I think a parallel trend is likely with polyamory. Now that the court has found that polyamorous relationships do not cause harm and are not criminal, we can expect to see polyamory gradually become social mainstreamed, exactly as gay relationships have.

While the court made clear that the vast majority of polyamorous relationships are non-harmful and non-criminal, the court did rule that the additional step of formalizing a polyamorist relationship is a criminal act. .

Nowhere does the court indicate how a loving polyamorous family who are free to live together in common law and who are causing no social harm, suddenly become criminals and socially harmful just because they seek to formalize their relationship with vows and a ceremony! In the context of their relationship, of living day in and day out in a polyamorous union, the acts of formalization seem trivial. Yet those specific acts make them criminals in the eyes of the law according to the judge.

No evidence at trial was adduced showing that such formalized polyamory caused anyone harm. There was a great deal of evidence showing that traditional religious male-dominant relationships with multiple partners created serious social problems.

But such relationships are radically different than modern, egalitarian polyamorous relationships. The polyamorous community will be interested in seeing this case appealed to correct what we see as an error in the judgment.

But aside from that, the judgment is good news for sex-positive folks in Canada.

You can listen to Ince being interviewed on CBC's "As It Happens" show nationally. (Click "Listen to Part One: (Pop-up)", or listen directly here, or download an mp3. Ince's interview begins at time 9:25.) (Nov. 23, 2011.) "As it Happens is a very high profile radio program in Canada," writes CPAA activist Carole Chanteuse. Writes Michael Rios, "One of the most striking things is that neither the interviewer nor the attorney bothered to define polyamory — it seemed as if they assumed that everyone would know what that was."

Meanwhile, a news story from the Canadian Press wire service says,

Multi-partner common-law relationships such as those described by so-called polyamorists, who claim their relationships are consensual and egalitarian, wouldn't be covered under the law. That could change if the people involved have a marriage ceremony or claim to be sanctioned by a higher authority.

Late Wednesday evening Carol Chanteuse of CPAA summed up,

We are taking a positive view overall. Polyamorous households are clearly not criminal, unless there is a "marriage" or "sanctioning event". This takes care of the vast majority of polyamorists and in a sense "ok's" our relationships. We are still assessing the court case nuances and figuring out next steps.

Among the people who are not sanguine about the decision at all is longtime polyactivist Dawn Davidson. Writing on her Uncharted Love site:

Polys Between Rock and Hard Place, Canadian-Style

November 23rd, 2011

Sadly, the news is very much NOT good for the polyamorous folks in Canada (and by extension and example, for anyone else): the judge upheld the law.... The ruling is extremely confusing, and discussion has been hot and heavy on many poly lists all day. The general conclusion, however, is that it is certainly not GOOD news for polyamorists.

...This essentially says that polyamorous relationships are just fine so long as no one anywhere tries to recognize it as a formal union of any sort. This might seem ok (especially to those who don’t support ANY marriages), but it’s important to remember that, since the law has been upheld, anyone who even participates in a non-legally-binding “marriage” ceremony, e.g., a Wiccan handfasting, or a non-religious statement of commitment, could be interpreted as having broken the law (or in the case of the person performing the ceremony, to have aided in breaking the law, which would leave them open to losing their license to perform marriages and any other certifications they might have ) — this could even include the family and friends of the people making the commitment.

At the very least, this infringes religious freedom, in my view, since it disallows “spiritual marriages,” “handfastings” and other non-legally-binding unions which are common and sometimes hold religious importance for some non-Judeo-Christian groups.

It also seems a bit like “keeping polys in their place” in a similar way to the “separate but equal” doctrines around race prior to the mid-60′s in the USA. The general tone of the arguments seems to go like this: “So long as you poly people ‘know your place’ and don’t threaten the status quo, we’ll tolerate you. But if you insist on fair and equal treatment, with the same privileges as your monogamous counterparts? Then we’ll happily fall back on a stricter interpretation of the law, criminalize your behavior, fine you, and maybe even throw you in jail. But hey, it’s up to you, poly folks: you can choose to remain ‘under the radar,’ not rock the boat, and ‘decline’ to utilize the services available to others, and then we’ll leave you alone.”...

Read her whole article.

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Bauman began hearing the case a year ago. Among many intervenors presenting testimony, the Canadian Polyamory Advocacy Association argued that modern, egalitarian, non-exploitive group relationships, which exist by the thousands in Canada, should not be criminalized as the law seemed to do, nor should they be confused with the allegedly abusive religious cult in Bountiful, BC, that prompted the case.

You can google up lots of current news reports.

The CPAA is organizing its members and supporters to get their views into the media. A key talking point: although media have focused on the small group of Fundamentalist Mormons in Bountiful (about 35 families), the vast majority of people criminalized by the law were the thousands in healthy, modern, egalitarian, polyamorous relationships all across Canada. CPAA members succeeded in getting this message into some of the media yesterday and again this evening following the CPAA press release.

Canada's anti-polygamy law, written in 1890 to target the Mormon settlers of the day, has been ignored and unenforced for many decades. It provides up to five years in prison for more than two people in "any kind of conjugal union." The definition of that was, until today, vague and sweeping: the law specifies that neither proof of sexual intercourse, nor proof of any marriage-like ceremony or agreement, were necessary for a relationship to be illegal.¹

The attorney general of British Columbia brought the case in order to pursue the leaders of Bountiful's allegedly abusive cult of Mormon fundamentalists. See my previous coverage of the case; click backward on links from there.

There were no defendants. This was a "reference case" to obtain a ruling on the validity of the law itself, a procedure the Canadian system allows. Bauman's ruling is not binding but will be influential.²

The decision will very likely be appealed to the BC Court of Appeal and ultimately, to the Supreme Court of Canada.

[Update, December 21: In a surprising development, George Macintosh, the court-appointed lawyer who argued to overturn Canada’s anti-polygamy law and lost, said today he will not appeal Chief Justice Bauman’s finding.]

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¹ The law in its entirety (Section 293 of Canada's Criminal Code) reads:

(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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² All transcripts and documents filed in the case are available in a Google Docs collection. This database was originally set up and maintained by the CPAA until the BC Attorney General's office took over the job.

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