CPAA presentation10 23 2010

Poly Living 2010
Workshop Presentation

Canadian Charter Rights case and criminalization of polyamorous households

What is the litigation about?
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”.

Canadian PolyamoryAdvocacy Association
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

Section 293
(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.

s. 293 (2) Proof
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.

Impact of s. 293
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.

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

Bountiful Polygamists
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

Media coverage
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

Recent BC government attempts to address patriarchal polygamy and alleged abuse
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)

The “Parties” of the case
Attorney General of British Columbia
Attorney General of Canada
Amicus: the “friend of the court”

“Interested Persons”(Interveners )
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

“Interested Persons”(Interveners )
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

Early statements of Attorney General of of BC:
seem to exclude polyamory
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.

But what are the government arguments
against “criminal polygamy”?
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

Evidence of the CPAA working with the Amicus
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

Some positions and messages of the CPAA
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.

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

Government Interests
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

Poly: the new gay?
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."

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…..

Whither Marriage and Society?
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

Summary
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

What can you do to help?
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

Carol’s reading: non-polyamory authors
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

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

CPAA presentation10 23 2010

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CPAA presentation10 23 2010 Presentation Transcript