British Columbia Supreme Court bars prosecution against polyamorists unless they enter into “marriage” or contracts
BY: DIANA ADAMS, ESQ. & TARA BOGNAR, ESQ.
Relationships between more than two people were ruled lawful in Canada – unless such a relationship is formalized with a commitment ceremony or relationship contract. Even those who attend a ceremony or assist with a contract sanctioning a relationship between more than two people could face criminal liability—so think twice before attending a polyamorous commitment ceremony in Canada.
On November 23, 2011, the British Columbia Supreme Court ruled Section 293 of Canada’s Criminal Code constitutional. Section 293 explicitly bans conjugal unions of more than 2 people and any form of polygamy. As explained in a previous blog post, many polyamorous Canadians were concerned they too, were subject to criminal penalty based on the text of the law:
“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.”
In 2009, the Lieutenant Governor of BC asked the court for a ruling on whether it could use s293 to prosecute two leaders of the FLDS community in Bountiful, BC. The Canadian Polyamory Advocacy Association, concerned that the law could also criminalize consensual polyamorous relationships, intervened in the case, arguing that the law violates the Canadian Charter of Rights and Freedoms.
The British Columbia Supreme Court ruled that s293 is constitutional, and thus polygamy continues to be illegal in Canada. However, the court clarified that non-monogamous unmarried relationships are not subject to criminal sanction. While this statement served as a relief for polyamorists in the province, it also created a confusing legal ambiguity. Living in a multi-party marriage is illegal, regardless of the genders of the people involved, while living in an unmarried multi-party relationship is not. Since there is no way for more than two people to officially marry in Canada, how can a multi-party marriage be distinguished from a multi-party relationship?
Justice Bauman’s ruling assumes that there is such a thing as “marriage” that exists independently of law and into which people can enter without any legal approval or recognition. Since participating in a “marriage” could make polyamorous families into criminals, it would seem important to have clear guidelines for how to achieve this legally illegitimate state of “marriage” – and how to refrain from achieving it in order to avoid violating the law. Justice Bauman excuses himself from that task: “I am not definitively defining “marriage”; it is not my task on this reference to do so.”
Justice Bauman offers no elaboration beyond the text of s293 itself, which states: “Everyone who… celebrates assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship” is criminally liable for polygamy. According to s293, “sanction” by means of “rite, ceremony, contract, or consent,” is what separates an unmarried from a married relationship.
The implication is that polyamorous relationships are permitted, but holding a commitment ceremony or signing a cohabitation contract would create a “marriage” and make the “spouses,” guests, officiants, and lawyers into criminals. Sanction by “consent” implies that even a private verbal expression of commitment to a multi-person relationship constitutes a “marriage” and subjects the “spouses” to criminal liability.
Thankfully, neither B.C. nor any other province has demonstrated or expressed any interest in prosecuting polyamorous spouses so people probably do not need to worry about promising to love and care for their polyamorous partners and accidentally ending up “married.”
However, this law continues to criminalize many consensual adult polyamorous relationships, lumping them in with coercive polygamous marriages. One of Justice Bauman’s reasons for upholding this invasive law is to protect women and children in polygamous families from forced marriage, rape, abuse, and trafficking. However, these abuses are already crimes. Instead of encouraging law enforcement to prosecute these offenses, the court’s interpretation of s293 discourages healthy families from creating intentional commitments, celebrating these commitments with their community, and creating legal contracts to offer their families stability and legal protections. The danger is that the court’s ruling may harm many more families than it helps.
This battle is not over yet. The case may be appealed to the B.C. Court of Appeals and even Canada’s Supreme Court. In the meantime, polyamorous families in British Columbia may choose to practice civil disobedience of this law in the form of commitment ceremonies or legal contracts. If the law is ultimately ruled unconstitutional, it could pave the way for powerful recognition of the right to formalize relationships without state intervention.
For a great roundup of reaction articles on the case, see: http://polyinthemedia.blogspot.com/2011/11/canada-polygamy-ruling-win-loss-or-draw.html
December 20th, 2011 at 8:07 pm
Hi Diana!
Did you see the final article dissecting Bauman’s decision by the CPAA’s lawyer, John Ince? Ince sees the ruling as a clear win for us. He is convinced that a mere marriage-like commitment ceremony or agreement (rings, vows, cake and all) cannot create a group “marriage” under the judge’s ruling.
The key is that the judge said it’s not a marriage unless it’s “institutionalized” — i.e. binding; recorded and enforced by some kind of authority; and not able to be dissolved by the parties themselves (i.e. without obtaining a divorce from the authority). It’s not a “marriage” if it can end by the parties just deciding it’s over and walking away, rather than by having to go back and obtain an unbinding.
Ince says that therefore, almost any ceremony that polyfolks would be likely to perform would not be a “marriage” under Bauman’s opinion; it would be a friendship ceremony.
The “authority” can be a sect leader a like an FLDS patriarch; it doesn’t have to be someone approved by the state. Also, polys getting married by a minister in a UU or Wiccan church might “borrow” sufficient authority from the church and its community to be illegal, but this is debatable.
See Ince’s open letter to the poly community:
http://polyadvocacy.ca/statement-from-john-ince-what-this-decision-means-for-polyamorists
Cheers,
Alan M.
December 21st, 2011 at 3:49 pm
[...] (This essay was originally written for my mentor, Diana Adams, and an alternate version is now on the Alternatives to Marriage Blog). [...]
December 29th, 2011 at 2:51 pm
I apologize for this off-topic post, but I wanted to mention this to AtMP, and see if anyone else had stumbled over the issue as well.
One of my sweeties and I are registered in California as domestic partners, so we can share his insurance benefits. We’d assumed that included his Flexspend account — the chunk of money he sets aside from his paycheck through the year that can be used to pay for medical procedures which insurance refuses to cover. We’ve just found out, however, that thanks to DOMA (the ridiculous so-called “defense” of marriage federal law) the Flexspend account will cover only him — not me — because we are not married.
This makes me so angry! Who is the government to tell us what a family is?! We’ve just made a donation to AtMP again, despite it being a very frugal year for us, because we feel strongly DOMA should be struck down as unconstitutional. Thank you for your patience with my indignant comment here.
January 18th, 2012 at 12:28 am
Alan,
Not Diana, but was interested to read Ince’s response. For practical purposes, I think he is correct – the prospect of the prosecution of polyamorous families under this section is unlikely in the extreme (practically I think that the prosecution of polygamously married men is also extremely unlikely).
I’m not persuaded by his reading, however. He lists 8 articles as citations, but of those articles, the only one that seems to say what he’s saying is 227, which seems to me to be more along the nature of background information than part of the holding (it is also in a much earlier section of the judgment than the holdings). Most of 227 is actually quoting expert witness Dr. Witte’s testimony on the traditional meaning and practices associated with marriage.
Dr. Witte’s testimony would actually make certain forms of marriage not marriage, if it were taken literally as a definition of marriage in Canada. For example, in Islam, it is possible for a couple to marry without a public record and also for that marriage to be dissolved by the simple declaration of the husband (and in some cases, the wife). That is technically the case in Judaism as well.
In fact the idea of marriage as something imposed externally that must be undone by force beyond the couple is deeply related to Christianity’s understanding of marriage as a sacrament. While marriage law in Canada did grow in the context of predominant Christianity, I would be very surprised if the Judge, or Ince would want to define marriage in a way that that so excludes non-Christian religious traditions and their adherents.