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Old 12-12-2011, 06:07 AM
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ImaginaryIllusion ImaginaryIllusion is offline
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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.
Emphasis Added

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.
Emphasis Added

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.
Emphasis Added


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.

We now 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.
“People who say it cannot be done should not interrupt those who are doing it.” - Chinese Proverb

-Imaginary Illusion

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Old 12-12-2011, 06:48 AM
Tonberry Tonberry is offline
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Polyamory has to be seen... I would think that ceremonies would be a major way to be seen to those around us, but they're specifically what's illegal :P

I guess I might be a bit bitter, but in the absence of any legal rights I feel like a symbolic ceremony is kind of the only thing we have left to express our commitment to one another, and it's definitely a shame that it's illegal. I don't understand why he says "the decision allows us to do virtually anything the vast majority of polyamorists would want to do". Are most polys not interested in getting married? Are those who are only interested in marrying one of their partners? Does that mean the primary/secondary hierarchy is far more common than I thought?
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Old 12-12-2011, 07:18 AM
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MonoVCPHG MonoVCPHG is offline
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Originally Posted by Tonberry View Post
I don't understand why he says "the decision allows us to do virtually anything the vast majority of polyamorists would want to do". Are most polys not interested in getting married? Are those who are only interested in marrying one of their partners? Does that mean the primary/secondary hierarchy is far more common than I thought?
In our local community there doesn't seem to be a lot of interest in even co-cohabitation let alone marriages for the most part. There is a few who would like to get married and there is also a fair number of "default" hierarchies due to legal marriages. I'm not that surprised as forming a lasting team of just two that is stable enough for joint investments and raising children is hard enough.

All in all I think most are just happy to not be viewed as criminals for having multiple partners.

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Old 12-22-2011, 06:22 PM
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ImaginaryIllusion ImaginaryIllusion is offline
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Thumbs down Amicus won't appeal BC Decision.

So it's been announced that the Amicus won't be filing an appeal on the reference case, though did not explain his reasoning. There's still a couple days for the AG's to decide if they want to appeal, but at the moment it looks like the court cases are done for the moment.

The upshot of this,...the time we have to work on Polyamory's image has been considerably extended, becoming an ally rather than an obstacle. It also means that the next best way of revising or killing the statute will be the MPs.

CPAA will be re-evaluating what direction to take, and will be looking for input from the community.

No appeal… we need your help on long-term strategy

Dec 21st, 2011 | By jbash

George Macintosh, the court-appointed lawyer arguing against Canada’s “polygamy law”, won’t appeal Chief Justice Bauman’s November 23 finding. The CPAA expected an appeal and is surprised.

We don’t have legal standing to bring our own appeal. Unless the Attorneys General decide to take this to a higher court, we don’t see any way to attack Section 293 directly in the near future.

The good news: without litigation setting an agenda for us, we can set our own, taking a fresh look at what Canada’s poly majority needs. We’re free to think about the long term, and we’d like your help.

If we really are done in court for now, in the coming weeks and months we’ll look at where the CPAA should go next: what our principles should be, where our priorities should lie, what services we should provide, what strategies we should use, who our allies should be, how we’ll be funded, and how we should organize ourselves. We can reinvent the CPAA completely, if that’s what needs to be done.

We’ll be asking for community ideas and help, via our own Web site and in other places. And, yes, we’ll fix the forums.

There is a possibility that either the Government of BC or the Government of Canada could take this case to a higher court; experts have suggested that they might want to get a decision that carries more weight throughout Canada, rather than settling for a BC decision. If that happens, we will probably continue along our existing litigation-driven path, and defer any major strategic rethinking. We don’t know how likely it is… but, by doing it, the Governments might be putting their substantial victory at risk.

We thank all the community members who’ve supported us in the last couple of years, and ask for your guidance and support wherever the coming years take us.


Mr. Macintosh hasn’t publicly said why he chose not to appeal, because the issue may come before another court in the future. Although it’s frustrating for us, as a matter of proper legal practice he’s probably right not to explain.

Section 293’s threat has been weakened; it could have been read much more broadly. The lines aren’t as sharply drawn as we’d like, but it applies only to formal, institutionalized multi-partner marriages, clearly not to informal “common law” style relationships.

Still, the CPAA believes that major parts of the finding are legally wrong, and that Section 293 violates the Canadian Charter of Rights. Charter aside, we believe it’s an unwise and harmful law, for our community and for others. Innocent people are at risk, and there are much better ways to address the abuses its supporters are concerned about.

Eliminating Section 293 entirely is still a CPAA goal, but we’ll have to lay a lot of groundwork to do that. And other issues may be as pressing, or more so, for our community.

Polygamy ruling won’t be appealed
VANCOUVER— From Thursday's Globe and Mail
Published Wednesday, Dec. 21, 2011 9:51PM EST

A court-appointed lawyer will not appeal a B.C. Supreme Court ruling that upheld Canada’s ban on polygamy, leaving the federal and provincial attorneys-general only two days to decide what to do next.

The decision announced on Wednesday by George Macintosh, who was appointed in the case to argue that Criminal Code provisions prohibiting polygamy are unconstitutional, does not rule out the possibility of further court action – at least not yet. The provincial or federal attorney-general can still ask for a review of the case in the B.C. Court of Appeal or the Supreme Court of Canada if they want to expand the ruling’s application to the whole country.
“People who say it cannot be done should not interrupt those who are doing it.” - Chinese Proverb

-Imaginary Illusion

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canada, criminal, legal, polygamy, polygyny

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