British Columbia Supreme Court bars prosecution against polyamorists unless they enter into “marriage” or contracts
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