BC Reference Case on Polygamy and Group Marriages

[ImaginaryIllusion]

Polygamy’s closer to home than we think
ROBERT LECKEY
From Thursday's Globe and Mail
Published Thursday, Nov. 24, 2011 2:00AM EST

The key difference between polygamy and the successive families enabled by divorce is timing. Polygamy leads to multiple wives and children simultaneously. Divorce leads to multiple wives and children sequentially. The economic problem in both cases is multiple dependencies and the need for support at the same time.

Part Two of The Current
Mail: polygamy, mammograms and access to running water on reserves

Polygamy: Yesterday, the B.C. Supreme Court upheld Canada's laws banning polygamy. In a 355-page decision, Chief Justice Robert Bauman acknowledged an infringement law on rights guaranteed by the charter but he said they were reasonable. He made it clear that it may not be used to criminalize child brides - who he said should be exempt from prosecution.

There are plenty of people today cheering the ruling, which stems from a case centred on a breakaway sect of the Mormon Church in Bountiful, B.C. But others argue that polygamy in Canada has - unjustly - been given a bad name. They say there are thousands of Canadians in polygamous or polyamorous relationships that are perfectly healthy ... that do not involve coercion, or abuse or trafficking of child brides.

Last November on The Current, we heard from a polyamorous family in Montreal ... Kimberly Ann Joyce, her two partners, Warren Baird and John Bashinski - and their then 3-year-old daughter, Kaia who is now 4.

John Bashinski also happens to be secretary of the Canadian Polyamory Advocacy Association - one of the interveners in the B.C. Supreme Court polygamy case. He joined us from Montreal this morning.

Good radio interview with JBash.

[Tonberry]

So as I understand it: the law stays, it does not mean polyamory in itself is outlawed, but it means if you have a party and look into each other's eyes and tell each other "I wanna spend the rest of my life with you" and you have done so with someone else, you can go to prison.
Also, if you were a witness you can go to prison too.
Also, it doesn't matter if you have more than one partner yourself, you could also be one partner of a poly person.

Not much progress here from my point of view. Why couldn't you have a ceremony without enjoying any of the legal benefits? What goes wrong the second there is a ceremony? This is incredibly ridiculous.

Also, incredibly anticlimactic. A whole year for this? Man I knew the law liked to take its time, but that much?

[TruckerPete]

Originally Posted by Tonberry

Not much progress here from my point of view. Why couldn't you have a ceremony without enjoying any of the legal benefits? What goes wrong the second there is a ceremony? This is incredibly ridiculous.

It's a good amount of progress from my POV. It means that we three can't be arrested because I'm married to Indigo and also having "conjugal relations" with Mr. A.

[ImaginaryIllusion]

One of the best commentary's on the decision I've seen yet:

We have as many double standards on polygamy as Solomon had wives
TABATHA SOUTHEY
From Saturday's Globe and Mail
Published Friday, Nov. 25, 2011 8:00PM EST

This ruling demonstrates the tendency to compare only the best monogamous relationships against only the worst polygamous relationships. I've seen hard-core feminists get 18th-century sentimental over monogamous marriage when polygamy is mentioned. They even stop saying “patriarchal,” and require resuscitation.

But objectively I can't find any argument against polygamy that doesn't work equally well against monogamous marriage, excepting those about Western tradition – which are the same ones made against same-sex marriage, and not dissimilar to those made against women's emancipation.

From the CPAA
The Poly Majority

Are you in the poly majority? Invisibility puts you in a box. Who defines how others see you?

Be seen. Learn how.

We are the poly majority: modern, secular, egalitarian polyamory.

We believe every adult should create her own relationships. No loving, life-enhancing possibility is out of bounds.

We believe rights are rights, regardless of gender.

We believe in affirmative concern for the feelings, well-being, and autonomy of every person.

[trescool]

I have to say, it's such a relief to hear this explained. I was really upset when I first read it because of how very negative it is regarding multiple partner relationships. For example,

" As for polyamory, only vague definitions have been offered as to what the term means, and none is capable of supporting any practical distinction between harmful polygamy and supposedly benign polyamory. Moreover, given that polyamory necessarily entails an increase in the number of non-related cohabitants, there is no reason to expect that the predicted increase in associated harms would apply with any less rigour than in the context of religiously motivated polygamy."

So Anyway that definitely made me unhappy to see, especially since my partner and I are hoping and dreaming of one day having a m-f-f-f polyamorous relationship which would very much have family life and caring for one another as a family and as equals at its core, aka, we really want lots of children; we'd love to adopt a couple children as well as have our own, as well as be foster parents. We're just very domestic people, it's not a religious orientation, just our way of caring for the future generations, I guess.

It seems this legislation is very anti multiple conjugal partners, but I guess reading this has made me realise that as bizarre as it sounds, it seems like multiple co HABITATING partners is not seen in the same in the eyes of the law as multiple CONJUGAL partners...

Anyway, I expect this ruling to be challenged.

In the meantime, it made me think about the necessity of having a better survey out there for who's all been in a COHABITATING polyamorous relationship, since this ruling was veryclear that sex with multiple partners was NOT illegal, nor was sex with someone else while you're married, etc. The interest would be to see who is involved in polyamory in a numbers way. I have a number of contacts that could get such a survey rolling on a national scale.... anyone interested in this?

[ImaginaryIllusion]

Originally Posted by SourGirl

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.

The judge went though a lot of motions to attribute the definitions of "marriage" and "conjugal union” in attempting to clarify why s.293 was intended to capture.

[1017] A “conjugal union” coming within the prohibition may not need be recognized as a “binding form of marriage”, but the whole thrust of the section is that it must be a purported form of marriage.

The overall explanations were that there had to be a sanctioning event which creates the marriage, as opposed to relationships which evolve or develop over time. Wearing a ring could just be jewelry...or as with engagement, still doesn't define a marriage. It would be a ceremony around the ring becoming a recognized symbol or marriage by the community that generates the offence.

As for the recognized by law part:

[1032] My response is two-fold. Quite arguably, the “whether or not” proviso is simply a way of underlining the intent that the fact of a non-binding second marriage is not a defence to the charge laid as a result of that event. But a more compelling point is this: that the possibility of a form of legally recognized polygamy was indeed in the minds of some Parliamentarians at the time of the initial legislation. As I noted above, when Bill F (the Senate’s predecessor legislation to the Commons’ Bill 65) went to Committee, one senator expressed concern that a provision in the proposed polygamy offence would have exempted from its ambit “any Indian belonging to a tribe or a band among whom polygamy is not contrary to law”.

It's to limit s.293 from a loophole marriage rites which may not be recognized by secular society or civil law. But the ceremony or event would still need to be recognized by the community to qualify.

Originally Posted by SourGirl

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

The big win in decriminalization is that it should significaltly reduce the utility of polyamory in custody cases. This of course is from a layman, so check with your local family lawyer before doing anything rash. The judgement after all isn't binding, but could have utility as part of case law.
As for co-parenting, it's unlikely. It again would not have the sanctioning event required in 1020-1022 above.

Originally Posted by Tonberry

So as I understand it: the law stays, it does not mean polyamory in itself is outlawed, but it means if you have a party and look into each other's eyes and tell each other "I wanna spend the rest of my life with you" and you have done so with someone else, you can go to prison.

No...looking and saying such doesn't constitute a marriage in the monogamous context either...for all we know that could just be pillow talk.

Originally Posted by Tonberry

Also, if you were a witness you can go to prison too.

Pretty much, as witnessing the event is part of lending the community support to the multiple marriage which is a behavior damaging to society which parliament was presumably trying to discourage by enacting s.293 in the first place, as we see when talking about the wives of polygamous marriages as victims:

[1197] I question whether the capable consenting spouse is a “victim”. To the contrary, she can be seen to be facilitating an arrangement which Parliament views as harmful to society generally.

The justice otherwise didn't touch it:

[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.

Which is unfortunate...since how proportional can it be to send someone to prison for attending a wedding?!

Originally Posted by Tonberry

Also, it doesn't matter if you have more than one partner yourself, you could also be one partner of a poly person.

Yep:

[1029] This formulation lacks some precision. It arguably would only capture a male in a polygynous relationship because he is the only one who has entered into multiple marriages. Each wife has only entered into one marriage with that male. Section 293 is intended to capture both parties. And by its terms, it refers to a polygamous relationship (and a conjugal union with more than one person) in the singular. This follows from the singular “union” and the singularity suggested by “whether or not it is by law recognized as a binding form of marriage”. It also follows from the fact that a polygamous relationship is evidenced by a marriage with multiple spouses.

[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.

Emphasis Added

[ImaginaryIllusion]

Originally Posted by Tonberry

Not much progress here from my point of view. Why couldn't you have a ceremony without enjoying any of the legal benefits? What goes wrong the second there is a ceremony? This is incredibly ridiculous.

Ridiculous...yeah, kinda. Part of why this story is likely far from over.

Originally Posted by TruckerPete

It's a good amount of progress from my POV. It means that we three can't be arrested because I'm married to Indigo and also having "conjugal relations" with Mr. A.

You got it TP. The case in general, and I think the entire objective of the Amicus and challenging intervenors was never about legalizing or figuring out how to regulate polygamy. That's not the purview of the court, it belongs to the legislature. All the questions in news comments etc. which yell and scream about what happens to pension benefits and such are far far down the road, and won't be decided by a trial.

The purpose of the reference was to determine if the law which makes polygamy criminal is constitutional. Does the state have the authority under the charter to restrict our freedom of having multiple spouses by using a criminal statute. And while the decision is so far in favour of upholding that law, the clarification means that the majority of polyamorous relationships (those that have not conducted more than one simultaneous marriage ceremony) are not captured by s.293. By that clarification polyamory as a relationship style, be it by co-habitation and/or common law is legal (upto the line in the sand of multiple marriages).

To have the threat of criminal prosecution lifted from our community is not an insignificant victory by any means. It opens the door for us to start moving freely and work towards the next court challenge, public awareness, and eventual acceptance. Whether or not we ever get it, we at least have the option to try.

Originally Posted by trescool

I have to say, it's such a relief to hear this explained. I was really upset when I first read it because of how very negative it is regarding multiple partner relationships. For example,

" As for polyamory, only vague definitions have been offered as to what the term means, and none is capable of supporting any practical distinction between harmful polygamy and supposedly benign polyamory. Moreover, given that polyamory necessarily entails an increase in the number of non-related cohabitants, there is no reason to expect that the predicted increase in associated harms would apply with any less rigour than in the context of religiously motivated polygamy."

That bit was the AG's, and they were of course trying to minimize the weight that polyamory would be given in evidence as opposed to the polygamists on which all their evidence was based.

Originally Posted by trescool

It seems this legislation is very anti multiple conjugal partners, but I guess reading this has made me realise that as bizarre as it sounds, it seems like multiple co HABITATING partners is not seen in the same in the eyes of the law as multiple CONJUGAL partners...

It's not about the relationship, it's whether or not you had a wedding. AGBC was similarly dismissive of our inclinations toward weddings in drawing the following conclusion from the Polyamorous affidavits.

[960] In explaining why the need to address the matter may never arise, the AGBC offers some further insight into what conduct he considers s. 293 to capture (at para. 126):

Indeed, it may be doubted that such a day may even come. The evidence indicates no significant religious, cultural or legal tradition, anywhere in the world, that includes among its tenets polyandrous or same-sex multi-partner unions. There are five affidavits from polyandrous polyamorists in Canada, but it may be doubted whether any of them is in a polygamous marriage or conjugal union within the prima facie scope of section 293 - none of the relationships has been of long-standing (it appears the longest has endured three years), none involves a sanctioning authority or external influence, and the parties appear to consider themselves bound only as long as they choose. [Emphasis added.]

Originally Posted by trescool

Anyway, I expect this ruling to be challenged.

Cross your fingers.

Originally Posted by trescool

In the meantime, it made me think about the necessity of having a better survey out there for who's all been in a COHABITATING polyamorous relationship, since this ruling was veryclear that sex with multiple partners was NOT illegal, nor was sex with someone else while you're married, etc. The interest would be to see who is involved in polyamory in a numbers way. I have a number of contacts that could get such a survey rolling on a national scale.... anyone interested in this?

Absolutely my thoughts as well. As I said, decriminalization will hopefully pave the way for poly's to be more willing to stand up and be counted. Hopefully others will be inclined to join as well when they understand that s.293 could impact them as well. Swingers who find their unicorn for example? What if she moves it? The decision applies to multipartner same-sex households as well. This law does have far wider implications than just polyamory.

Originally Posted by Tonberry

Also, incredibly anticlimactic. A whole year for this? Man I knew the law liked to take its time, but that much?

Actually it's been more like 2 years, and it's going by quickly! Keep in mind that while Homosexuality was decriminalized in 1968-69, it wasn't until various provincial court decisions started around 2002 and parliaments eventual introduction of the Civil Marriage act in 2005 that same-sex marriage became legal. Over 35 years.

No matter what way you slice it, this is going to be a long haul.

[SourGirl]

Originally Posted by ImaginaryIllusion

The big win in decriminalization is that it should significaltly reduce the utility of polyamory in custody cases. This of course is from a layman, so check with your local family lawyer before doing anything rash. The judgement after all isn't binding, but could have utility as part of case law.
As for co-parenting, it's unlikely. It again would not have the sanctioning event required in 1020-1022 above.

Well, it doesn`t affect me, as I`ll never be living in that manner, but even with the positives, this seems more of a sideways move to me. With the various provincial definitions of common-law, and the fact that 'community' attended parties get accused of all kinds. However, if those that live this way, feel better about it, then that`s good. They are the ones living it.

[Tonberry]

Originally Posted by TruckerPete

It's a good amount of progress from my POV. It means that we three can't be arrested because I'm married to Indigo and also having "conjugal relations" with Mr. A.

Well, what I meant is compared to before the whole thing. Before the hearings started, nobody would have thought to arrest you I believe. The law was only raised because someone wanted to use it against a polygamous person, and only because they couldn't find a way to charge them with anything else. Then someone went "this law is old and makes no sense - it's not constitutional" and the old thing happened.
Yes, it could have been worse, they could have made polyamory illegal. But it doesn't change anything in my life personally, compared to before the hearings were an issue in the first place. Actually, it's worse because before I would have thought nothing of having a binding ceremony and I doubt anyone would have come to bother me about it.

Originally Posted by ImaginaryIllusion

No...looking and saying such doesn't constitute a marriage in the monogamous context either...for all we know that could just be pillow talk.

I was actually just describing a ceremony. When I said "someone else" I meant the witness and whoever is officiating. But that's still kind of my point. A binding ceremony is kind of like pillow talk, but planned and with people celebrating your love with you. It has no legal binding. It's personal and private in the same way a birthday party is. It's... just weird to me.

[TruckerPete]

Originally Posted by Tonberry

Well, what I meant is compared to before the whole thing. Before the hearings started, nobody would have thought to arrest you I believe.

It was worded so vaguely, that they COULD have. It was certainly something I worried about.