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  #61  
Old 11-08-2011, 06:43 PM
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Thumbs up Decision November 23

Latest on the decision from CPAA....

http://polyadvocacy.ca/decision-november-23

Nov 8th, 2011

Quote:
The Court has announced that the judgement will be released at 10:00 (AM, Vancouver time), on November 23, 2011. The judgement will go up on the Court’s web site at that time.

There will be about an hour and half of supervised early access for the parties’ counsel and the media, but any counsel or media people who participate will not be allowed to communicate with the “outside world” until release time. We haven’t had time to decide whether or not we’ll participate as a way of preparing our reaction more quickly.
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  #62  
Old 11-23-2011, 03:01 PM
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Today's the day, in about 3 hours at 10pm PST the decision will be released and posted to the BC Supreme Court site:
http://www.courts.gov.bc.ca/supreme_...Judgments.aspx
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  #63  
Old 11-23-2011, 06:47 PM
cypherpunks cypherpunks is offline
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Default Well, shit. Mostly.

The ruling is that s. 293 is constitutional in all regards, except for criminalizing underage marriage participants.

However, the act specifically requires:
  1. an identified person, who
  2. with the intent to do so,
  3. practices, enters into, or in any manner agrees or consents to practice or enter into,
  4. a marriage, whether or not it is by law recognized as a binding form of marriage, with more than one person at the same time.

In particular, living together, having sex together, and raising children together does not count, there has to be some sort of "marriage ceremony".

I realize that this will catch some poly groups who've had some unofficial ceremonies (not that prosecution is likely), but it makes it very easy to avoid. As long as you avoid the "M" word, any amount of pre-gay-marriage binding powers of attorney, listing as beneficiaries, etc. is fine. As long as you don't intend for it to be a marriage, it doesn't count.

Heck, in the absence of a legal marriage, you could declare yourself divorced from one partner and married to another each morning. Just don't wear both wedding rings at the same time

So it's mostly bad news, but some good.
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  #64  
Old 11-23-2011, 08:46 PM
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I see the court decided to uphold the ban, basing it on the responsibility of protecting women and children, versus religious freedom.


"This case is essentially about harm. ... This includes harm to women, to children, to society and to the institution of monogamous marriage," wrote Bauman.

" Polygamy's harm to society includes the critical fact that a great many of its individual harms are not specific to any particular religious, cultural or regional context. They can be generalized and expected to occur wherever polygamy exists." - Justice Robert Bauman.

That`s a pretty damaging statement.
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  #65  
Old 11-24-2011, 03:11 AM
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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.
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  #66  
Old 11-24-2011, 08:02 AM
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Polyamory in the News!
NOVEMBER 23, 2011
Canadian Judge Upholds Anti-Polygamy Law
Quote:
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.

CPAA's John Ince on CBC's As it Happens
http://www.cbc.ca/asithappens/episod...day-edition-3/
Part 1 At 9:30.
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  #67  
Old 11-24-2011, 10:47 AM
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I don't really understand what the law now entails. Is any ceremony whatsoever prohibited? Is it okay if you don't call it marriage? If no contract is signed? And why would that be the deciding factor? What makes it okay if you're hiding it and not okay if you're not?

Plus... it's not even about hiding it, is it? You can call as many people husbands and wives as you want, wear rings for all of them, you just need not to have a ceremony. Although I still don't understand what counts and doesn't count as a ceremony.

I'll try reading the whole thing, but for now I'm really confused.
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  #68  
Old 11-24-2011, 03:04 PM
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Quote:
Originally Posted by Tonberry View Post
I don't really understand what the law now entails. Is any ceremony whatsoever prohibited? Is it okay if you don't call it marriage? If no contract is signed? And why would that be the deciding factor? What makes it okay if you're hiding it and not okay if you're not?

Plus... it's not even about hiding it, is it? You can call as many people husbands and wives as you want, wear rings for all of them, you just need not to have a ceremony. Although I still don't understand what counts and doesn't count as a ceremony.

I'll try reading the whole thing, but for now I'm really confused.
I don't know if this will help, but these are the sections that deal with the marriage ceremony:
Quote:
[1020] In my view, it is clear that the offence created in ss. 293(1)(a) is premised on some form of sanctioning event because the status prohibited by the section - “polygamy” and “any kind of conjugal union with more than one person at the same time” - both have at their core, as I have discussed, “marriage” (whether or not recognized as legally binding). And “marriage” has at its core the voluntary joining of two individuals with the requisite intent to “marry” and the recognition and sanction by the couple’s community. I have previously noted that a sanctioning event of some formality is contemplated by s. 293.

[1021] That leaves ss. 293(2) to relieve, as I have indicated, from the need to prove the actual method by which the marriage was entered into. Of course, in many instances the existence of the marriage may well be established by proving the sanctioning event, but that is not absolutely necessary. The existence of the marriage, because of ss. 293(2), may be inferred from all of the circumstances before the Court.

[1022] I should be clear that in saying a sanctioning event is contemplated by the section, I am not saying that proof of the event is a constituent element of the offence. Section 293(2) says otherwise. What is an element of the offence is a “marriage” with more than one person at the same time, and an indicia of “marriage”, as I have discussed, is some form of sanctioning event.
Emphasis added.

The Marriage and Conjugal Union parts of the offence require a sanctioning event...this would be an external authority able to conduct such an event. Three people just living together isn't illegal...but as soon as they all walk down the aisle together, it becomes an offense under 293.
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  #69  
Old 11-24-2011, 03:37 PM
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Heartfield: We don't need a polygamy law
Postmedia News November 23, 2011
Quote:
Aren't many women in monogamous relationships subject to those same harms? The judge dismisses that question, saying he was only asked to look at polygamy. "That harm may arise out of other human relationships, that is, monogamous ones, seems beside the point."

Actually, that is the whole point. This is a question of criminal law, not social policy. Marriages don't commit crimes; people do. It is the abuse itself, not the kind of relationship it happens in, that ought to be criminal. And indeed, is criminal.

In buying into the notion that our laws should attempt to manipulate our demographics, not govern our behaviour, the judge has underestimated the role of human agency. Criminalizing the community takes the emphasis off the moral responsibility of the abusers themselves (after all, they're only creatures of a bad marital code) and patronizingly assumes that no adult woman should be able to choose, freely and competently, to enter into a plural marriage.
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  #70  
Old 11-24-2011, 08:39 PM
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I am hoping once the whole judgement is deciphered, and all the loop-hole`s seen to, that I`ll find some positive outlook.

Currently, it feels like the stranger offering some candy.

The disturbing part to me, is that people can`t have a private ceremony. Not in any way. The law doesn`t have to recognize it, for it to be unlawful. While I understand protecting those who could be under the power of religious sectors that think they are above the law, it still makes me wonder about those who try and wear a wedding ring on a certain finger, or anything of a symbolic nature.

What about guardianship of children and such ? Could co-parenting be viewed as 'marriage' ?

Just my initial thoughts.
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