There's been various reactions in response to the decision, and still a lot of conjecture on what it actually means for Polyamorists in Canada.
John Ince was kind enough to clarify some of the legalese of the decision in the following open letter to address the content of what the decision actually means, as well as his personal opinion of why the decision was a win for the community as a whole.
I've selected some of what I consider the key points of his letter:
Statement from John Ince: What this decision means for polyamorists
Dec 11th, 2011 | By Carole |
Open letter to the Canadian Polyamory Community from John Ince
It has been two weeks since the Polygamy Reference court decision was released by Chief Justice Baumann of the BC Supreme Court. I have thought a great deal about the case since then, and communicated with lawyers and people in our legal team about how that decision affects the members of the Canadian polyamory community.
Also these are my personal thoughts. I am not expressing any official policy of the CPAA or anyone else.
In general terms, I think that the decision allows us to do virtually anything the vast majority of polyamorists would want to do.
That is not to say that I agree with all of the court’s conclusions. I think he made errors in his Charter analysis and I think the scope of the prohibition he ultimately defined is still overbroad and unconstitutional. I think this judgment could be overturned on appeal.
But while I may disagree with many of the judge’s points, his conclusion is very positive for our community. His decision makes it clear that polyamorists are not criminals and this is a major step forward for our community to gain social acceptance and become more integrated into mainstream Canadian culture.
Pensions, immigration, community property, child custody issues
Finally, many people want to know how this case affects issues not related to the formalization of marriage, such as its impact on immigration, pension, community property or hospital attendance privileges for people in polyamorous relationships.
Because the court found that polyamorous relationships that are not institutionalized into a form of marriage are lawful, people in such relationships no longer have to face the chilling argument in child custody, immigration or other matters that they are criminals. That is obviously a very positive outcome of this case.
Further, nothing in this case prevents people in cohabiting polyamorous relationships from entering contracts with respect to most key family issues, such as community property and the care of children, and hospital privileges.
We need to remember that the gay marriage issue was the last major legal issue to be resolved about gay equality, not the first. If there are polyamorous people who want exactly what homosexuals got, who want the right to traditional institutionalized poly marriage, then the first step toward that goal is resolving all issues pertaining to pensions, and immigration in a purely co-habitational context and then some time in the future seek the final step of the legal recognition of polyamorous marriages.
As for my own opinion, I look at is as objectives achieved, and a balance of changes resulting from the decision.
Before the decision we didn't know how s.293 would be interpreted if it was ever applied towards polyamorous relationships. Polyamorists who'd already had a ceremony were pretty clearly in violation of s.293. The question was how broadly "conjugul union" would be applied for those of three or more who were living together but had not had a ceremony, and even association with a "criminal element" for poly's who may live as singles or couples, but still have other lovers; how would it affect custody of children, etc.
The objective of the CPAA as I understood it was :
bring forward the case of Polyamory to the court to demonstrate that not all
- multiple partnerships were inherently harmful
- ensure the court didn't ignore polyamory and how it would fit into s.293
- attempt to keep polyamorists from being declared criminals
In meeting these objectives CPAA did an outstanding job:
- Evidence was indeed provided to the beneficial nature of Polyamory. And the judge went through some lengths to ensure it was clear that polyamorists stood apart from polygamists.
- The AG's and the Court did have to contend with how polyamory fit in s.293...a question which the AG's in particular weren't interested in addressing.
- While s.293 stands, still stands, polyamory and our non-ceremonial living arrangements were deemed to not apply to this law, and thus are legal.
All objectives were met....mission accomplished
As for the balance:
The subset of the poly community who had ceremonies were illegal before, and they're still illegal now. There's no change
The larger portion of the community who haven't had ceremonies, but didn't know where they stood are now legal. They can shack up freely without fear of prosecution, or loosing their kids by just virtue of their relationship choices. It is now safer to be poly and out. This is a decidedly positive change
The community as a whole has gained the freedom
to be out with less fear than before. I think this is a good thing.
And it's critical to the path ahead. Over 80%
of Canadians currently support s.293, and polyamory is invisible to the issue of multiple partners in the public arena. This invisibility will hurt us
unless we can change public perception.
Note: In an intensely political case like this, a ruling to strike down s.293 could have done us far more harm than good; "Notwithstanding Clause" nuff said.
But that means polyamory has to be seen
. They have to see that we're their neighbors, co-workers and friends. They have to see us living normal lives, and typically happy and healthy homes. They need to see the communication, ethics, and egalitarianism of polyamorous communities
around them. They need to see that we're not like the 2 guys in Bountiful, and they need to see that we're all over...not hidden away in small isolated pockets.
have the freedom to start doing that. And that's cause for celebration.
Yes, s.293 is still there. It's still stupid, useless and counterproductive. It still captures the subset of legally polygamous members of the polyamorous community. Regrettable as it may be, getting rid of this law is untenable unless the wider public can see it too. It's a long long road to get rid of it, and we've only taken the first step.
As the T-Shirts say..."Polyamory: Legal in Canada since 2011!". We've stepped of very well indeed.