"Canadian Charter Rights case and criminalization of polyamorous households" Presentation made at the Poly Living 2010 conference in Seattle on Oct 23,2010.

1. Poly Living 2010
Workshop Presentation

3.  Canada’s (federal) criminal law, S. 293, criminalizes both
polygamy and group conjugal situations.
 The British Columbia Supreme Court has been asked by
the government of BC whether s. 293 is consistent with the
Charter of Rights and therefore constitutional.
 Government focus is on fundamentalist Mormon
communities (Bountiful) and patriarchal polygyny
 Canadian Polyamory Advocacy Association (CPAA) has
intervened to ensure polyamorist perspective is
represented and not “collateral damage”.

4. CPAA formed as a legal entity to apply as an
“interested person” in the court case. Goal:
decriminalization.
All volunteer run, including legal counsel
Focus is on the litigation, with a secondary eye to
media/government
Formal membership presently includes those actively
working on the project: legal, media, research,
community outreach, technical, witnesses
Seed money of $1,100 in donations received
Web presence polyadvocacy.ca and CPAA Facebook

5. (1) Every one who
(a) practices or enters into or in any manner agrees or
consents to practice 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.

6. Evidence in a 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.

7.  First polygamy law enacted in 1890’s with a sub-
clause directed at Mormons. Monogamy as basis for
settlement and homestead system.
 Charges rare. Convictions even more rare.
 Used to assimilate aboriginal people, limit
polygamous immigration
 Family Law: affects custodial decisions, though few
known cases. Provincial jurisdiction for common
law/adoption/etc.
 Conduct of polygamous families: privacy.
Impact of s. 293

8. Increasing interest
Level of social acceptance: family/friends
Government responses: generally neutral
Community fears: not criminalization
Political organization minimal
So, how “out” are polyamorists?
Polyamory in
Canada

9.  Fundamentalist Mormon - FLDS
 (Fundamentalist Church of Latter Day Saints)
 First immigrated to Canada in the 1860’s
 Ties with US FLDS church, Warren Jeffs
 Polygynous (“celestial marriages”)
 Highly patriarchal
 Loyalty to the prophet above all else. Isolated and
separate from Canadian society
 Fears of this “cult”: treasonous.
 Allegations of abuse, exploitation of girls, lack of
“real” consent, limited/racist education, “lost boys”,
abuse of social safety net
Bountiful Polygamists

10.  Curious and interested media
 Context of Bountiful colours ability to “see” polyamory
 Distinguishing in the media and court:
• Polyamory v. patriarchal polygyny
• Decriminalization v. recognition

11. RCMP (police) investigations since 1990
Many legal opinions that the federal criminal polygamy law is
unconstitutional
In 2009,. charges laid by BC government against Blackmore/Oler
(Bountiful leaders) and thrown out due to abuse of process.
2009 BC Attorney General asks the BC Supreme Court (trial level) to hear
evidence and advise whether:
 S. 293 is consistent with the Charter of Rights. If not, then how so
and to what extent?
 What are the necessary elements of the offence? Does it require
that it involve a minor or occurs in a context of dependence,
exploitation, abuse of authority, a gross imbalance of power, or
undue influence?
Call for interveners (Interested Persons)
Recent BC government attempts to address
patriarchal polygamy and alleged abuse

12.  Attorney General of British Columbia
 Attorney General of Canada
 Amicus: the “friend of the court”

13. Position: Constitutional
 Stop Polygamy in Canada
 West Coast Legal Education Action Fund
 British Columbia Teachers Federation
 REAL Women of Canada
 Beyond Borders – Ensuring Global Justice for
Children
 Christian Legal Fellowship
 Cdn Coalition for the Rights of Children & David
Asper Centre for Constitutional Rights

14. Position: Not Constitutional
 Fundamentalist Church of Jesus Christ and
Latter Day Saints, (FLDS) & James Oler, Bishop
 BC Liberties Association
 Canadian Association for Free Expression
 Canadian Polyamory Advocacy Association

15.  The law does not target polyamorists
 Law is constitutional when interpreted properly. Read law to require
sanctioning by an influential authority and binding.
• Even polygynous polyamorous relationships are not “polygamy” without
this and not intended to be prohibited by the law. Not associated with
the same harms.
• Situations associated with demonstrable and apprehended social
harms: patriarchal polygyny that is inter-generationally normalized and
enforced through more or less coercive rules and norms of non-state
social institutions.
 Also possible to read down the law to situations involving a minor,
occurring in a context of dependence, exploitation, abuse of authority, a
gross imbalance of power, or undue influence
 Note again: law is widely considered to be unconstitutional as written.
Early statements of Attorney General of of BC:
seem to exclude polyamory

16.  Immoral
 Harms:
• Overall negative social effect (the “cruel arithmetic”
argument)
• Harms to participants (women and children)
• Social harms (women’s equality rights)
 International obligations under human rights treaties
 Consistent with Canadian values
 Polyamorists could still be collateral damage
But what are the government arguments
against “criminal polygamy”?

17.  CPAA Witnesses :
• Polyandrous polyamorous groupings from across Canada.
(Five families who are quite different than at Bountiful)
 CPAA Survey:
• Random respondents from Poly community in Canada
 CPAA: Brandeis Brief materials and books
 Amicus witnesses:
• Freedom of religion: Wiccan Church of BC
 Evidence re happy polygamous families
 Expert and social science reports
 Supported anonymous FLDS witnessses

18. Consensual, egalitarian, polyamorous relationships, including conjugal
relationships, are equal in value and dignity to monogamous
relationships, and should be treated in the same way
S. 293 breaches Charter rights including: freedoms of conscience,
religion, association, and rights to equality, as well as life, liberty and
security of the person (vagueness, breadth)
Government should not be using a Victorian era criminal morality law to
criminalize loving and consensual polyamorous relationships.
There is no demonstrated harm and no reasonable anticipation of harm
in allowing multiple, loving polyamorous conjugal relationships.
If it is not criminal to have secret sexual affairs with multiple partners or
to have serial marriages, then it should not be criminal to live with
more than one conjugal partner at the same time.
Some positions and messages of the CPAA

19.  All evidence has been submitted
 Advising court as to who we want to
examine and preparing initial
positions
 November 22: hearing begins. 40
days

20.  Not wanting to appear to be “for” patriarchal polygyny
 Not bringing charges of alleged issues of abuse and
exploitation, or dealing with education funding/services
concerns
 Conservative federal government agenda
• Same sex marriage: attempt to reverse
• Disbanding of the Status of Women Committee

21. Dec 21, 1967:
Justice Minister (and later, Prime Minister)
Pierre Trudeau, modernizes the Criminal
Code of Canada. Decriminalizes
'homosexual acts' performed in private,
saying:
“…there's no place for the state in the
bedrooms of the nation“
and
"what's done in private between adults
doesn't concern the Criminal Code."

22.  On July 20, 2005, Canada legalized same-sex marriage
nationwide.
 Is decriminalization a slippery slope to recognition of
polyamorous marriage?
• Even if not criminal, recognition does not follow
• Different considerations than gay marriage
• Not on the agenda.
 Other actions and remedies
• Multiple conjugal relationships not recognized as common law
• Provincial jurisdiction
• Personal remedies: a self-help focus
• First, relationship obligations
 Learning from previous activist movements
Maybe not…..

23.  Some personal reflections. (Not CPAA)
 Both marriage and democracy are strengthened when more
people are given viable options for living their lives in tune
with their greatest desires, interests and needs.
 Criminalization is counterproductive to this goal.
 Instead put resources toward supporting the individual
against the potentially abusive power of the group (gov’ts,
corp’ns, religions or families). Education
Whither Marriage and Society?

24.  Our goal is decriminalization of families based solely on the
number of people involved.
 Families based on love and respect should not be the subject of
the criminal law.
 Criminalization causes secrecy, marginalization, shame, of
mutually loving relationships.
 Abusive and exploitative behaviours should be addressed
directly by the law, and no free pass for religious groups or
monogamous relationships .
 Polyamorous values are in line with greatest democratic values
of equality and freedom

25.  Donations
 Support – November 22
• Polyamory celebratory events?
 Be aware – informed
 In Canada, talk to your MP or MLA. Talk to
others. Educate them about polyamory.
 Media Watch reports

26.  The Importance of Being Monogamous, Sarah Carter
 Marriage, a History, Coontz
 Sex at Dawn, Ryan and Jetha
 Gay Marriage: The Story of a Canadian Social
Revolution, Sylvain Larocque
 The Secret Lives of Saints, Bramham
 Under the Banner of Heaven, a Story of Violent Faith,
Jon Krakauer
 Evaluating Modern Cults, p. 409-10, Shamans Sorcerers
and Saints A Prehistory of Religion, Brian Hayden
Carol’s reading: non-polyamory authors

27.  Forums at “www.polyadvocacy.ca”
 Canadian Polyamory Advocacy Association
Fan Page on Facebook
– comment on discussions there
 Email us at “support@polyadvocacy.ca”