BC Reference Case on Polygamy and Group Marriages

ImaginaryIllusion · #1 11-19-2009, 03:24 AM

X-posted from Vanpoly yahoo group 13 Nov 2009

Quote:

Call for Intervenors

November 13, 2009

Court case: Upcoming BC Government's Court Reference on the Criminalization of Polygamy and Group Marriages

The BC government will shortly put a question to the Court to test the constitutionality of section 293 of the Criminal Code of Canada which criminalizes people who practice polygamy or enter into any kind of "conjugal union" (i.e. a common-law marriage) with more than one person at the same time. Intervenors will have as little as 3 weeks to respond with court applications and affidavits.

It is important that polyamorists who are interested in being married to more than one person, or are living with more than one person, make the court aware of their interests and the legal arguments that the law is unconstitutional, because it infringes their Canadian Charter rights of association, religion (i.e. Wiccan or Pagan), equality, and the life, liberty and security of the person. It is not appropriate for a law which criminalizes loving, committed, consensual relationships to remain on the books, even if it not presently being enforced. The more polyamorous interveners there are, the more strongly the court will hear this position.

PLEASE ENSURE THAT THIS EMAIL IS PLACED ASAP TO ALL OTHER CANADIAN POLYAMOROUS GROUPS AND LISTS TO WHICH YOU BELONG.

Who are we?

We are individual members of the Vancouver polyamory community and are active members or coordinators in Vanpoly (www.vanpoly.ca), who have joined together to coordinate an intervention by polyamorists so that the court can hear our stories and arguments. We have experience in organizing politically and legally. One of our members has offered to act as pro bono legal counsel and has successful experience in mounting constitutional challenges to Canada's criminal code. We are also liaising with other civil and legal rights groups who are also following the BC government closely in this matter.

What are the steps in the process?

First, and as soon as possible, we need to identify potential intervenors and get their stories. When the government asks the court about the legality of this legislation, we want to be ready to finalize the sworn statements of intervenors and apply to the court within the 3 week period. If our application to the court is accepted, we will then prepare legal arguments in support of the above position that it is not appropriate for a law which criminalizes loving, committed, consentual relationships to remain on the books. It is expected that this process will need to go very quickly.

Qualifications of an Intervenor

We are in immediate need of identifying as many potential intervenors as possible so that polyamory can be properly represented.

If you are a Canadian Resident:
1) currently living with multiple partners in a conjugal (marital or marital-like) relationships, or
2) have engaged in polyamorous relationships either in the past or currently AND have a desire to live with multiple partners in a conjugal (marital or marital-like) relationships in the future
then we ask you to email us.
While we are interested in hearing from ALL people who fit the above criteria, we are especially interested in having at least one female in a MFF (male-female-female) grouping.

What would it mean to be an intervenor?

1. You would need to give legal counsel some facts as to your polyamorous lifestyle which would be written up in a statement, which you will be asked to swear on oath is true. This statement would be filed in court. Your name and your address along with the statements in your affidavit would then be public. However, you would NOT need to name your partners.
2. You may find that your name and other information in your affidavit is in the news. You would NOT need to speak to media or answer their questions as you could refuse to respond to any media enquiries.
3. You would NOT need to incur court costs. You would need to pay for the affidavit to be sworn if you are in a city other than Vancouver. (If this is a concern, please advise and we will look for donations toward the cost.)

Who do I contact for more information or to offer to be an intervenor?

Please email Melly at ms.mellyn@gmail.com.

Thank you for your attention to this.

ImaginaryIllusion · #2 11-19-2009, 03:25 AM

Canadian Criminal Code (R.S., 1985, c. C-46)

Quote:

Polygamy

293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or

(ii) any kind of conjugal union with more than one person at the same time,

whether or not it is by law recognized as a binding form of marriage, or

(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Evidence in case of polygamy

(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.

R.S., c. C-34, s. 257.

ImaginaryIllusion · #3 11-19-2009, 03:29 AM

X-Posted...since I know that the author won't mind
This predated the Call for Intervenors

VanPoly Yahoo group, 8 Nov 2009
Re: Potential court case: Identification of a potential intervenor. MFM?

Quote:

--- In vanpoly@yahoogroups.com:

Quote:

Does anyone remember a few years ago, there being a forum for discussion
online about marriage in Canada? It seems to me it was aiming at federal
government policy development and they were looking for input. I recall I had
some difficulty signing into the group and getting access so I never did find
out about where it went. I suspect it was pre-this Conservative group.

There is an Institute of Marriage and Family Canada...
http://www.imfcanada.org/Default.aspx?cat=0
I haven't dug into it very much...but I think it'll be leading the charge for the conventional nuclear family.

Which brings me to the next point, a book:
Sarah Carter.
The Importance of Being Monogamous: Marriage and Nation Building in Western Canada to 1915.
Edmonton: University of Alberta Press
http://www.h-net.org/reviews/showrev.php?id=23679
http://www.amazon.com/exec/obidos/ASIN/0888644906

Sarah Carter has a couple other books as well...at least one along similar lines. I saw her at a leacture last year in Victoria. Rather informative. She didn't seem to want to get into current events or policies. However her lecture, and the book, deal primarily with the various non-monogamous, and non-life-long-marriage systems that were practiced by various groups in British North America, and the reasoning, methodology and laws that were brought in by the government to systematically force everyone into a one-man, one-woman life-long nuclear family with no option for divorce.

If you want to challenge the law, an understanding of the policy's that were used to create it might be of some use...especially considering that the policy back then was heavily conservative christian driven, and thus probably not in line with the Charter as it exists now.

ImaginaryIllusion · #4 11-19-2009, 03:33 AM

X-Posted...since I know that the author won't mind
This predated the Call for Intervenors

VanPoly Yahoo group, 9 Nov 2009
Re: Potential court case: Identification of a potential intervenor. MFM?

Quote:

I haven't read the book...just heard her speak at a university lecture based around it. The H-Net review however does a pretty good job of summarizing each part of the book, which might allow you to hunt down particular segments of interest if there isn't time to go through the whole thing.

There's also a shorter synopsis here: http://www.physorg.com/news162652678.html

Personally, my line of thinking was this:
The law was "deliberately imposed on the Canadian frontier as a means of social control" based on christian values.

From the H-Net review:

Quote:

"Indeed, before the late nineteenth-century monogamous marriage was not a foregone conclusion; it was a deliberate choice on the part of white, Christian, middle-class politicians, government officials, and reformers to make it the foundation for a new nation. This imposition of a particularly rigid definition of marriage was contested by couples who had previously enjoyed flexibility in their domestic situations and individuals, especially women, who had benefited from alternatives to monogamy that offered more egalitarian relationships. In other words, less choice also meant less equality because the monogamous model also shaped gender relations within the home and beyond. The lifelong union of one man and one woman to the exclusion of all others until death was often tied to the ideal of the husband as undisputed head of the family and the dependent and submissive wife. As proponents of monogamy complained, divorce and other forms of union gave women too much power in their relationship with men."

There has been a change in the way we do business in this country, whereby women are no longer chattel, divorce is more common and now legally recognized, gender rolls are being redefined, or at least redistributed. So why do we still have a law on the books based on a religious norm that was forced on the people by the government? This is precisely what the charter was put in place to avoid.

As for why should we care? Every citizen should care about any law still on the books that doesn't conform to the freedoms of the Charter. The only legitimate excuse the government has to put a law governing the shape of relationships (aka freedom of association) is demonstrable harm. Limiting age of consent, legal age for marriages/civil unions, etc. are perfect examples of those. I don't
think anyone would debate that there should be such an age...even if there's disagreement about where it should be placed.

But making anything that isn't heterosexual monogamy is illegal just because the christian's say so? Not a good enough reason. And with the history presented in the rest of Sarah Carters work, I think demonstrable harm would be a hard thing to prove.

Anyways...just my 2 cents. I'm neither a lawyer or constitutional expert...and I don't know if I've ordered everything to make sense. But that's how I'd approach it. See what the experts think I guess.

And who knows...maybe someone should approach Dr. Carter about the issue as well...not to advocate necessarily...but perhaps to discuss the historical perspective when the time comes.

-<signature>

Addendum: For a really interesting discussion of criminal law vs. constitution, check out the transcripts from the following senate committee on illegal drugs hearing...specifically the testimony of John Conroy.
http://www.parl.gc.ca/37/1/parlbus/c...s=1&comm_id=85

Following is an excerpt I found particularly appropriate for discussing any constitutional issue:

Quote:

<Start clip>
The Chairman: My colleague, Senator LaPierre, used the word ``moral.'' I want to hear your views on the question of moral values as supported and defended by the Criminal Code. I have in mind prostitution and abortion, which is still in the Criminal Code, although not applied. We are hearing witnesses, reading papers and receiving e-mails on the moral aspect. They say that no matter what is said, it is morally wrong and that the Criminal Code defends their values. What do you say to that?

Mr. Conroy: What is the moral value? It is telling people what they can or cannot do with their bodies. It is the imposition of your views on others when what they do does not affect you in any way and should be none of your business. This moral value thing is nonsense. Do not forget that we are a constitutional democracy. We are no longer a parliamentary democracy. We have been a constitutional democracy since 1982, so morality is no longer a sound constitutional basis for law in a pluralistic society. That is merely one person's morals versus another's. We have no nationally defined morals.

People have strong views, be they religious or whatever. It is one thing for them to speak out, remonstrate and tell me what I or anyone else should not do. I do not mind that; that is democracy and that is good. However, trying to use the law, and criminal law in particular, to threaten my liberty in order to enforce their moral values is not acceptable in a constitutional democracy. We try to respect everyone's perspectives as best we can.

It inevitably involves a balancing act between society's or the state's interests and individual interests, but it is no longer acceptable to impose your morality on Canadian society unless it is an extremely well defined type of morality, such as ``Thou shalt not kill.'' However, where is the morality issue in the consumption of marijuana?

The Chairman: You spoke about the harm principle earlier with regard to murder. In matters that do not affect anyone else, such as abortion, you basically follow what the court said in Morgentaler?

Mr. Conroy: That is right. It involves forcing a woman to choose between her liberty and her health. It is the same basis as in the Parker decision.

<End clip>

ImaginaryIllusion · #5 11-19-2009, 03:36 AM

X-Posting a X-Post...since I know that the author won't mind

VanPoly Yahoo group, 16 Nov 2009
Re: Call for intervenors in litigation

Quote:

Xposting from VanIsle-poly since I've already ranted on the subject previously anyways....and this is just a continuation.

--- In VanIsle-poly@yahoogroups.com,

This is going to be backwards:

Quote:

> Lawyer's take:

http://www.lawyersweekly.ca/index.ph...&articleid=899

The second article is a much shorter read. Quick, to the point.

Quote:

For some other interesting views and articles to see where the government is coming from:

http://www.justice.gc.ca/eng/dept-min/pub/poly/chap1.html#a1

This one was actually really well written, and if anyone can wade through it all (I have to confess I did glaze over in a couple spots) it really demonstrates that whomever takes on the intervenors will have an enormous challenge ahead of them. And where the perception of Polygamy (and anything similar by association) lies in the system.

A couple foot notes:

WRT a UK challenge attempting to allow an immigrant to bring a second wife into the country:

Quote:

|While the Commission found that the claimant's Article 8(1) right had
|been interfered with, it held that the U.K. legislation was justified
|to preserve a Christian-based monogamous definition of marriage as
|part of the "protection of morals" exception under Article 8(2) of the
|Convention."

"protection of morals"! This is exactly the reason that the charter needs to challenge this law. The charter is supposed to help prevent this kind of reasoning from being used to impose religious or personal based morals on the majority.

Quote:

|While criminal prohibitions of polygamy in many states including
|Canada were originally premised on the preservation of a Christian,
|monogamous definition of marriage,[326] there seems to have been a
|shift in the rationale for such legislation given the more complete
|understanding of the harms of polygyny and the nature of patriarchy in
|recent times.

However, the paper does do a very good job of outlining all the ills of polygyny as it exists around the world, and it's affects on women and children, and specifically the harm it causes. The Harm principle is of course one of the main caveats for the government to restrict charter rights.

The paper has a laundry list of rights, some your would see in the charter, some to do with international treaties on the equality of women, none of which I would expect anyone who cherishes freedom would object to. It also goes into detail, usually effectively, and I'm sure the references would back up the statements, about how polygyny brings harm to women and children and violates those rights. It also frequently ties things back to the context of bountiful.
Again, the case against Bountiful, or most of the other cases presented would be unconscionable for anyone I've met or read in the poly community.

Quote:

|In addressing some of the harms often associated with polygyny, it is
|important to note that some academic commentators have questioned
|whether the practice is inherently harmful to women and children or
|whether the typically associated harms are merely indicative of
|patriarchal social contexts. Christina Murray and Felicity Kaganas have
|questioned the supposition that structural inequalities can only be
|addressed in one-to-one relationships.[29]
<snip>
|Sexual stereotyping, male domination and the treatment of women as
|property, they argue, are neither limited to polygyny nor inevitable
|within it.[31]
|
|While Kaganas and Murray are certainly correct in arguing that the
|sexual stereotyping of women is not limited to polygyny, they seem to
|underestimate the degree to which the inherent asymmetry of polygyny
|tends to perpetuate sex-stereotyping. Where polygyny exists, it often
|stereotypes women into reproductive and service roles. As a result of
|such stereotypes as well as its inherent structural inequality, women
|can never be truly equal in polygynous unions.

This is probably where if the polyamory community has any chance of showing a bright light in an otherwise dismal image ... this is probably the pressure point.

In terms of evidence, and studies of how polygyny has been practiced seem to be there, and will include a long list of wrongs against the freedom, rights, and equality of women. There won't be any way to deny it. The problem is that the issue of polygyny, polygamy, bigamy, will all be confused in issues of religion, womens' rights, gender equality, and patriarchy! The quote above says it all...they are just trying to mute it.

The challenge will be to seperate the issues where they belong. Polygyny isn't really the issue. Especially not in our world...or at least it doesn't need to be. The issue is the patrarchal contexts that polygyny currently takes place.
Most of the wrongs they list happened in monogamous...and particularly even god-fearing "good christian" families less than a century ago...when women were still chattel even in this country. (Beverley Baines article, the 2nd one says pretty much the same)

Bountiful and the abuses, discrimination, stereotyping, inequalities, etc, that go on there...and elsewhere are issues of patriarchy run amok. And shouldn't be tolerated in our country anywhere...not even in the monogamous context. No effort need be spent on defending anything that would restrict womens equality and freedoms.

The centre of gravity then will be...demonstrating the free of patriarchical norms, and where women have the freedom of choice and consent, and an equal power base and legal protections, that plural marriage (of ANY configuration) can work. If there's anything the poly community should be able to bring up in this case it will be that Women CAN be equal in these relationships, can still determine their own terms, have informed consent, and keep their right to self-determination in the process. Most of the problems the paper pins on polygyny already have mechanisms or solutions in the polyamory community....and most people I've met in the community (male or female) would never stand for it.

In particular reference to the harm visited on children...where they may not have access to the father, and poverty prevails at the whim of the patriarch (or his lack of earning potential) I'd challenge them to find the same results in a household with multiple parents of both genders. Not to mention the earning potential of multiple adults when both genders are free have careers.

Anyways...food for thought. If you haven't read the articles, but are interested in the issue...it's worth the time.

ImaginaryIllusion · #6 11-19-2009, 08:22 PM

Related to some of the posts above, particularly those dealing with patriarchy, this is a good documentary to look into the background of that.

The Gods of Our Fathers (1994)
Gwynne Dyer's 1994 documentary on patriarchy, civilization, militarism and democracy
On Youtube:
Part 1 of 5
Part 2 of 5
Part 3 of 5
Part 4 of 5
Part 5 of 5

ImaginaryIllusion · #7 11-30-2009, 02:21 AM

xtra.ca story: Vancouver polyamorists to intervene in polygamy case

ImaginaryIllusion · #8 12-05-2009, 05:27 PM

X-post update on the BC reference case.

Quote:

Poly Reference Judgment released today
Posted by: "John"
Fri Dec 4, 2009 3:11 pm (PST)

If you are into legalease then you can get the full judgment here:
http://www.courts.gov.bc.ca/jdb-txt/...09BCSC1668.htm

For our purposes the key portion is this:
***************************
The person or group interested in participating in the proceeding shall, by 28 January 2010, file with the Court and deliver to the AG BC, the AG Canada and the amicus a Notice of Motion applying for leave to be added as a party or intervener, along with an affidavit setting out the following minimum information:

· The person or group's interest in this matter.

· If a group, a description of its membership.

· An outline of the person or group's position or anticipated argument with respect to the reference questions.

· A description of the amount and types of evidence, if any, the person or group would expect to present to the Court.

· A description of whether and to what extent the person or group would seek to participate in the hearing.
****************************
So we now have our dates. And we have at least three potential poly families. Away we go....
John

redpepper · #9 12-07-2009, 09:31 PM

I'm on it imaginary.... got a few peeps here on it.... if you want details then PM me k?

MonoVCPHG · #10 12-09-2009, 05:03 PM

Redpepper and I had a short discussion about participation in this. I think I would be ok with supporting it if names and faces were not made public. Not really as a vocal participant but as a presence. If it is public I want nothing to do with it. She asked why and I said "extended family".

We always say "As long as no one is getting hurt" than pretty much anything goes in relationships. My parents would be hurt I'm sure of that. I'm sure my ex wife would just chalk it up to my decent into debauchery and I am unsure how my daughter would receive me getting public attention for this.

I know there is the argument that it's ok or even good to "challenge" people sometimes but I don't see this as challenge. I see it as causing "hurt" and therefore it is not ok for me.

I'm happy just to enjoy my relationship and if I can keep the stress it causes others to a minimum I will. I don't believe in the "it's their thing" statement which absolves me from responsibility. I think that is a cop out derived from selfishness in getting what I want.

Obviously each of us can do as we please and need to stand up for what we believe in. So it is possible for one of us to take a stand while the other does not. I find this a very interesting situation.

Who among us is willing to stand up if the public eye will be on us?

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