Canada, having legalized same-sex marriage back in 2005, has moved on to considering—or reconsidering—other kinds of marriage. In British Columbia, the Supreme Court is hearing final arguments this week in a reference case. The Canadian Polyamory Advocacy Association (CPAA) says, as an intervenor, that polygamy ought not necessarily be considered criminal and wants to ensure that laws against polygamy cannot be applied to modern-day polyamorists.
According to Xtra!, a gay and lesbian news source, the polyamorists say the Canadian Criminal Code’s prohibition on polygamy — including any kind of conjugal union with more than one person at the same time — could infringe on their constitutional rights of association, religion, equality, and the life, liberty and security of the person as outlined in the Charter of Rights and Freedoms. A government lawyer, Craig Jones, said the CPAA’s suggestion that only “harmful” polygamy be banned was perhaps not a terrible idea. But Jones said the lawsuit should be dismissed because all forms of polygamy are harmful.
“Polygamy hurts people,” he said, citing allegations of sexual abuse and child brides being smuggled across borders to marry middle-aged men. "A polygamous society consumes its young … People are harmed by polygamy.”
CPAA lawyer John Ince has said the polygamy law, as written, "is contrary to the Charter and the deepest moral values of Canadians." George Macintosh, a lawyer assigned to argue on behalf of those who oppose the criminalization of polygamy, said “The law ignores casual group sex, but it criminalizes relationships.”
At the cases center, as you might expect, is the government's treatment and prosecution of members of a Mormon sect.
We’re not sure when this discussion is going to break out south of the border, but we’re listening. What do SexIs readers think?
Editor's Note: This article has been edited to reflect nuances and points made in the comments below. We urge readers who are interested in the case to read the comments and check the links.
According to Xtra!, a gay and lesbian news source, the polyamorists say the Canadian Criminal Code’s prohibition on polygamy — including any kind of conjugal union with more than one person at the same time — could infringe on their constitutional rights of association, religion, equality, and the life, liberty and security of the person as outlined in the Charter of Rights and Freedoms. A government lawyer, Craig Jones, said the CPAA’s suggestion that only “harmful” polygamy be banned was perhaps not a terrible idea. But Jones said the lawsuit should be dismissed because all forms of polygamy are harmful.
“Polygamy hurts people,” he said, citing allegations of sexual abuse and child brides being smuggled across borders to marry middle-aged men. "A polygamous society consumes its young … People are harmed by polygamy.”
CPAA lawyer John Ince has said the polygamy law, as written, "is contrary to the Charter and the deepest moral values of Canadians." George Macintosh, a lawyer assigned to argue on behalf of those who oppose the criminalization of polygamy, said “The law ignores casual group sex, but it criminalizes relationships.”
At the cases center, as you might expect, is the government's treatment and prosecution of members of a Mormon sect.
We’re not sure when this discussion is going to break out south of the border, but we’re listening. What do SexIs readers think?
Editor's Note: This article has been edited to reflect nuances and points made in the comments below. We urge readers who are interested in the case to read the comments and check the links.
This actually affects myself and my partners deeply. Arch is Canadian and we are American...in short we have all sorts of problems being together legally. If poly marriage is upheld we can legally marry and then our family can be in the same country....if it is still held to be criminal then I may have to divorce the man I also love in order to bring my family together. It's a tangled web when people with agendas try to legislate love and sex.
Thank you for giving publicity to this issue, Jeff, but a number of serious revisions are required to make this article accurate.
1) The CPAA isn't arguing for polygamy.
It's not splitting hairs to say that CPAA, not being experts on the matter, has no position on polygamy. However, CPAA is opposed to upholding a horribly worded law that would criminalize modern, egalitarian, polyamorous people, their families, even friends and neighbours in some circumstances. It may appear that CPAA is "for" polygamy, but there isn't agreement on that issue, and saying so publicly is actually unhelpful to the cause.
2) The case isn't "brought by" CPAA
Importantly, the Province of BC itself requested this unusual "reference" case, likely because it saw the law as problematic. The CPAA is just one of almost a dozen "interested persons" who may officially contribute their evidence and legal opinion to assist the court in its deliberation. Other parties to the case include the attorneys general of BC and of Canada, anti-polygamy groups, civil liberties groups, a teacher's federation, and the court-appointed amicus curiae (see below).
3) It is not a lawsuit.
It's a reference case. Nobody is suing anybody, they are arguing the details of a law. The format is legally unusual, because it is organized similar to a trial but nobody is actually on trial. You might say that the law itself is on trial. The judge is considering constitutionality, whether to strike it down, reword it, and the criteria for being captured by it.
4) The lawyer for CPAA is John Ince
John has volunteered an enormous amount of his volunteer time during and before the case, backed by a team of polyamorous volunteers to assist with research and litigation strategy. The man you mention, George Macintosh, is in fact a lawyer from a Vancouver firm which was appointed to argue against the government. This is referred to as the amicus curiae or "friend of the court". He is doing a thorough job arguing on generally the same side as CPAA and others who don't think the law should be upheld, and has dramatically greater resources at his disposal. However, he represents a different party.
Again, thanks for taking interest and I hope that you will consider these corrections. The news for CPAA is that BC Attorney General Craig Jones praised the CPAA's arguments to restrict the law to only harmful behavior in polygamy as "the most thought out and well articulated" of all the submissions.
Anybody who wants to follow this case, dig into the background and view it from the angle of polyamorists is welcome to visit [https://polyadvocacy.ca].
The polyamory advocates need not have concern with the BC reference matter. They were initially concerned that wording of Canada's poygamy laws included all multiple conjugal relationships. Both the federal government and the BC government has since said only conjugal UNIONS (distinct from conjugal relations) are covered. Married people can also have multiple "common law spouses" in Canada (and even revceive provincial family law recognition of these extra spouses) they just can't have a "civilly registered marriage" to more than one at a time. If they did, then bigamy (not polygamy) would be the case in Canada. Polyamorists generally just have multiple spouses and not more than 2 of them are in a civil MARRIAGE union. The rest are just "common law relationships" and that is perfectly legal for married people top have same time common law spouses in Canada.
Thanks you, Ivo and Sinai. I'll update the article for tomorrow. It is difficult, of course, to do the issue justice in this short format; and perhaps we can address it at more length on the site soon. I appreciate the help.
I hardly know where to start. We have existing laws which deal with sexual abuse, rape and underage marriage and procuring minors. These issues arise no matter the nature of the family or how many adults are involved with each other or their legal status with each other. In the case of the FDLS these laws are not now being enforced and have not been historically, mostly because of the separation and isolation of their communities from contact with mainstream society.
In their frustration the powers that be are desperately attempting to use archaic laws to gain a grip on the problem and help those they see as being victimised and vulnerable. I am frustrated that the debate can't even properly name what they think the problem is - polyandry, not polygamy.
Unfortunately this does not make logical sense and I don't feel that it will lead to a solution that will not also have collateral damage on others who are innocently exploring the natural variations that seem to be a proper fit for some of the more open and creative among us.
As a society we allow our emotions and parochial morality and fear of public censure and a host of other issues to cloud our vision and get in the way of divining a path forward that will achieve the goal that the majority of us want - that our women and children be safe and that the predatory men among us not be allowed the opportunity to control and brainwash and pervert their lives for their own selfish sexual interests.
Maybe rather than attempting to grab this or that law and bend it to our purported goals or arguing in circles around the real issues we should open up a broad dialogue on this problem and try to come up with realistic solutions.