View Single Post
  #65  
Old 11-24-2011, 03:11 AM
ImaginaryIllusion's Avatar
ImaginaryIllusion ImaginaryIllusion is offline
Moderator
 
Join Date: May 2009
Location: Canada
Posts: 1,948
Exclamation Decision, s.293 Upheld with clarification.

Full text of the judgement can be found here:
Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 – 2011/11/23

Some Interesting passages from the decision:
Quote:
[140] “Form of marriage” is defined in s. 214:

“form of marriage” includes a ceremony of marriage that is recognized as valid

(a) by the law of the place where it was celebrated, or

(b) by the law of the place where an accused is tried, notwithstanding that it is not recognized as valid by the law of the place where it was celebrated;
Quote:
[974] Moving closer to the center, the AG Canada submits that s. 293 prohibits practicing or entering into multiple, simultaneous marriages, whether sanctioned by civil, religious or other means. It is not directed at multi-party, unmarried relationships or to common law cohabitation. It captures both polygyny and polyandry.
(Emphasis Added)
Quote:
[977] I have concluded that the AG Canada’s submission, with some qualifications, is closest to the mark in this contest.
Quote:
[986] The AG Canada’s submission on the scope of s. 293 then proceeds to suggest that it is directed at prohibiting multiple, simultaneous marriages or in the AGBC’s version “duplicative marriages”. This position is to be contrasted with that of the Amicus and his allies that s. 293 captures all non-monogamous conjugal relationships.

[987] I agree with the AG Canada and the AGBC that the section does not; that its focus is multiple marriages, that is, pair-bonding relationships sanctioned by civil, religious or other means.
Quote:
[1030] Of course, one enters the prohibited relationship of “polygamy” or a “conjugal union with more than one person” by a marriage between, in the case of polygyny, the man and each subsequent wife. Each marriage brings the participants into what I will call the capital “M” Marriage. It is that “Marriage” which is the ultimate target of s. 293(1)(a) and all participants in it are captured by the offence.
Quote:
[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.
Emphasis Added.
This part of the decision give some clarity that Polyamorists that have not entered into an actual marriage arrangement are not captured by 293.
I also appreciate that if s.293 is to be upheld, it is done without sexist discrimination, applying to polygynous, polyandrous and same-sex unions equally.


Quote:
[1359] For the reasons I have given, s. 293 is consistent with the Canadian Charter of Rights and Freedoms except to the extent that it includes within its terms, children between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time.
Quote:
[1365] The parties did not in any substantial way deal with the offence created by s. 293(1)(b) of the Code and I have, accordingly, assumed that Question 2 is limited to the polygamy/conjugal union offence.
At the end of the day, not a surprising result, but at least provides enough clarification for polyamory to continue living and loving with less fear of prosecution or criminalization.




Court rules polyamorist relationships are lawful
by John Ince

Quote:
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.




CPAA Reacts to BC Supreme Court Decision
Quote:
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.





Judge upholds polygamy law as constitutional, but decides children shouldn't be prosecuted

By Neal Hall with Jonathan Fowlie
VANCOUVER SUN November 23, 2011 4:12 PM
Quote:
The judge found that the law is constitutionally sound, except as it applied to for children between 12 and 17 who marry into polygamy or enter into a conjugal union with more than one person at the same time.

The judge found the law prohibiting polygamy is inconsistent with the Canadian Charter of Rights and Freedoms for children who marry into polygamy before the age of 18.
Quote:
John Ince of the intervener Canadian Polyamory Advocacy Association said he was pleased that the judge's ruling found that three consenting adults involved in a relationship should not be a criminal act if they are not married.
__________________
“People who say it cannot be done should not interrupt those who are doing it.” - Chinese Proverb

-Imaginary Illusion

How did I get here & Where am I going?
Reply With Quote