We don’t have legal standing to bring our own appeal. Unless the Attorneys General decide to take this to a higher court, we don’t see any way to attack Section 293 directly in the near future.

The good news: without litigation setting an agenda for us, we can set our own, taking a fresh look at what Canada’s poly majority needs. We’re free to think about the long term, and we’d like your help.

If we really are done in court for now, in the coming weeks and months we’ll look at where the CPAA should go next: what our principles should be, where our priorities should lie, what services we should provide, what strategies we should use, who our allies should be, how we’ll be funded, and how we should organize ourselves. We can reinvent the CPAA completely, if that’s what needs to be done.

We’ll be asking for community ideas and help, via our own Web site and in other places. And, yes, we’ll fix the forums.

There is a possibility that either the Government of BC or the Government of Canada could take this case to a higher court; experts have suggested that they might want to get a decision that carries more weight throughout Canada, rather than settling for a BC decision. If that happens, we will probably continue along our existing litigation-driven path, and defer any major strategic rethinking. We don’t know how likely it is… but, by doing it, the Governments might be putting their substantial victory at risk.

We thank all the community members who’ve supported us in the last couple of years, and ask for your guidance and support wherever the coming years take us.

More on on the finding and the lack of appeal

Mr. Macintosh hasn’t publicly said why he chose not to appeal, because the issue may come before another court in the future. Although it’s frustrating for us, as a matter of proper legal practice he’s probably right not to explain.

Section 293’s threat has been weakened; it could have been read much more broadly. The lines aren’t as sharply drawn as we’d like, but it applies only to formal, institutionalized multi-partner marriages, clearly not to informal “common law” style relationships.

Still, the CPAA believes that major parts of the finding are legally wrong, and that Section 293 violates the Canadian Charter of Rights. Charter aside, we believe it’s an unwise and harmful law, for our community and for others. Innocent people are at risk, and there are much better ways to address the abuses its supporters are concerned about.

Eliminating Section 293 entirely is still a CPAA goal, but we’ll have to lay a lot of groundwork to do that. And other issues may be as pressing, or more so, for our community.

Hello everyone:

It has been two weeks since the Polygamy Reference court decision was released by Chief Justice Baumann of the BC Supreme Court. I have thought a great deal about the case since then, and communicated with lawyers and people in our legal team about how that decision affects the members of the Canadian polyamory community.

Thoughts only – not advice and not the official position of the Canadian Polyamory Advocacy Association (CPAA)
These are my thoughts. And they are just that. Thoughts. These words are not intended to be legal advice to anyone. If you want such advice please hire a lawyer to get his or her opinion about the case and how it might apply to your own unique circumstances.

Also these are my personal thoughts. I am not expressing any official policy of the CPAA or anyone else.

In general terms, I think that the decision allows us to do virtually anything the vast majority of polyamorists would want to do.

That is not to say that I agree with all of the court’s conclusions. I think he made errors in his Charter analysis and I think the scope of the prohibition he ultimately defined is still overbroad and unconstitutional. I think this judgment could be overturned on appeal.

But while I may disagree with many of the judge’s points, his conclusion is very positive for our community. His decision makes it clear that polyamorists are not criminals and this is a major step forward for our community to gain social acceptance and become more integrated into mainstream Canadian culture.

The Decision
The judge interpreted Canada’s criminal law against polygamy narrowly so that it only criminalizes non-monogamous relationships that are a) institutionalized b) marriages. The law, he said, protects the “institution of monogamous marriage”. He concluded that the law does not apply to non-monogamous relationships in general.

Of the two terms “institutionalized” and “marriage” the former is the most important, not only because it narrows the second term, but also because the concept of “institutionalized” is clearer than the concept of “marriage”.

The judge discussed three types of institutionalized marriage and they give a guide to what he means by “institutionalized”.

The first type is the institution of two person heterosexual marriage. As the judge discussed, that institution has thousands of years of cultural practice behind it and in Canada 150 years of formal legal definition and sanction. It is clearly an institution.

As to the key elements of that institution the evidence suggests these things:
1) marriage has a community dimension because the marriage affects the wider community and not just the parties to the marriage;
2) the community must in some way formally sanction the marriage through an authority structure;
3) some form of marriage registration must occur so the community can determine a marriage has taken place;
4) the public nature of the ceremony is in part designed to tell others that the parties to the marriage are off-limits for sexual purposes;
5) because the marriage affects the wider community the terms of the marriage cannot be renegotiated by the parties themselves;
6) the parties to a marriage cannot dissolve it themselves; dissolution requires another public ceremony or involvement of third parties
(from paragraphs 227, 1020, 1037-1042 of the court’s decision which is at http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm )

The formal sanctioning by the Canadian legal system in the last twenty years of a new form of monogamous marriage – homosexual – which the judge also recognized shows that marriage can be institutionalized by new practices.

The third type of institutionalized marriage discussed by the court was that of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (the “FLDS”), a patriarchal, polygynous and fundamentalist sect which broke off from the Mormon church many years ago. That community, although a virtual legal outcast from mainstream culture, has a roughly 150 year marriage tradition and it clearly meets the above criteria of institutionalization.

The FLDS marriage is discussed in the holy books that the community reveres. Specific practices sanction the marriage and the marriage is approved by people of authority in the community. The fact of the marriage is well known in the community. There are rules which prohibit sexual contact outside marriage. More rules authorize expelling people from the community for violation of marriage vows. There are rules and practices for the dissolution of the marriage.

Muslim multi-party marriage traditions are similarly rich in institutional detail and long practice.

According to the judge’s decision, the FLDS and Muslim multi-party marriages are institutionalized and hence prohibited by the Criminal Code. To the argument that the prohibition breached the Charter, he replied that the harm caused by institutionalized multi-party marriage prevented Charter protection.

Application of the decision to polyamorists
Now I apply these points with the facts that I believe pertain to the polyamorous community in Canada.

I see no form of polyamorous marriage in Canada that could be called “institutionalized” within the meaning of the decision. Nowhere in the literature about polyamory filed in the court is there any discussion of such an institution in Canada or the U.S.

There are some polyamorous community values regarding relationship: such as that it is consensual, honest, and gender and sex-orientation equal, but this applies to all relationships, not “marriage”.

There are also community values about personal autonomy and the overriding right of the individual to follow their own path in getting in and out of relationship, while respecting the interests and feelings of others, and those values are incompatible with the institutionalization of marriage as discussed above.

I conclude that given the lack of polyamorous history, sanction or support for “polyamorous marriage” that polyamorous people cannot form the type of marriages that the judge found are prohibited.

I go so far as to say that even if polyamorous people wanted to form such relationships, they cannot. The whole structure of institutionalization that the judge emphasized over and over again as key to his decision is simply lacking in our community.

Could this structure be created by a sect of polyamorists who want to create a specific form of polyamory for their members? Yes, but they would have to create rules of membership in the community, an ideology of marriage or rules of marriage, a process of formalizing marriage, punishments for breaking marriage vows, and ways to dissolve the marriage.

Members of the sect who participated in such “marriage” ceremonies would be breaking the law as the judge defined it. However such a sect if charged with an offence would have the opportunity to raise evidence showing that polyamorous marriage causes none of the harms which the court defined in the Reference case, and hence Charter protections might apply and prevent any conviction.

Given the current Canadian polyamorous community, I believe such a sect would have very few members. But if there are people who really want marriage then they can form that sect and take their chances with the law.

How far can we legally go?
Because there is no polyamorous institution of marriage, how far can polyamorous people go in celebrating and formalizing their relationships? In my view: probably as far as they want.

The furthest would be to have a formal celebration, with vows, and rings, and even to expressly call it a marriage. This is probably not a prohibited form of “marriage” because it lacks the institutionalization discussed above. Specifically, it is entirely ad hoc and personal to the parties. There is no community structure defining any aspect of the marriage, no third party dissolving the marriage, no punishment for leaving the marriage.

Given the fact that marriage is so bound up with monogamy I believe very few people in the polyamorous community would want to use the language and trappings of marriage for such ad hoc celebrations. But as I say, they probably can go that far and not offend the law.

Avoiding use of the word “marriage” or even formally disavowing that the celebration is a form of marriage would remove any legal risk that I can see. These steps may not be necessary, however I would include them if I was involved in such a ceremony.

So I think we can have ceremonies where we celebrate our relationships. We can take vows of love and commitment. We can share rings. We can have contracts about finances, and child rearing, and health care. All of those things occur regularly in common law monogamous relationships.

Borrowing institutionalized structure
An interesting issue would arise should a polyamorous couple want to borrow the institutionalized structure of a group that is not formally polyamorous. For example, say there is a ceremony that is overtly defined as a “marriage”, that also follows Wiccan traditions and which is presided over by an accredited Wiccan official. Or say there was a break-away sect of the Catholic Church led by a former priest who has a congregation and who will “marry” anyone or any number of people, using all the trappings of the Catholic Church.

I think the prosecution could make a strong argument that there was sufficient “borrowed institutionalization” applying to these official purported “marriages” to make them offend the law. Hence any explicitly purported “marriage” conducted by any official from a real community would not be advisable in my opinion. If you want to call your ceremony a marriage, getting any “official” involved increases your legal risk.

Having an “official” from a community preside at a ceremony increases the risk of criminalization, but if you are determined to do that, your legal situation will be better but not absolutely secure if you do not call the ceremony a “marriage” and even better, formally disavow that the process is a “marriage”.

Pensions, immigration, community property, child custody issues
Finally, many people want to know how this case affects issues not related to the formalization of marriage, such as its impact on immigration, pension, community property or hospital attendance privileges for people in polyamorous relationships.

Because the court found that polyamorous relationships that are not institutionalized into a form of marriage are lawful, people in such relationships no longer have to face the chilling argument in child custody, immigration or other matters that they are criminals. That is obviously a very positive outcome of this case.

Further, nothing in this case prevents people in cohabiting polyamorous relationships from entering contracts with respect to most key family issues, such as community property and the care of children, and hospital privileges.

However many issues cannot be resolved by agreement of the parties but must be specifically authorized by legislation, such as immigration privileges or automatic community property or pensions. Laws do grant privileges to people who are legally married, and also many common law monogamous marriages.

Many polyamorous people want those same rights.

The problem is that polyamorous cohabitation is so new that society has not yet worked out how to apply the rights that monogamous couples enjoy to a multi-party cohabitation.

These rights are going to have to be worked out on a case by case basis over time. Gay couples won their battles that way. Over a period of a couple of decades they litigated many cases dealing with child custody, pensions, tax issues, etc. It was only after those other rights and obligations were established—allowing gay relationships to become mainstream—did gay couples ultimately gain the privilege to participate in institutionalized monogamous marriage.

We need to remember that the gay marriage issue was the last major legal issue to be resolved about gay equality, not the first. If there are polyamorous people who want exactly what homosexuals got, who want the right to traditional institutionalized poly marriage, then the first step toward that goal is resolving all issues pertaining to pensions, and immigration in a purely co-habitational context and then some time in the future seek the final step of the legal recognition of polyamorous marriages.

John Ince
Lawyer and Spokesperson for the CPAA (polyadvocacy.ca) December 11, 2011

There’s more in our press release and in the judge’s reasons.

Our thanks go out to all the community members who’ve supported us. The CPAA is in this for the long haul. We will continue our work, on appeal, in Parliament, or wherever it takes, until all loving, healthy polyamorous relationships are fully accepted in Canada. And we’ll still need your help.

We are, of course, still and always available for interviews at +1 778 786 8010.

Please watch for follow up blog postings and resources at the Canadian Polyamory Advocacy Association’s website at www.polyadvocacy.ca

I will also blog about it and the impact of the decision on polyamourous households in British Columbia and across Canada.

It is with mixed emotions – excitement, fear, and relief among others -  that I wait for this decision to be released.  One can ponder all the possible outcomes and their ramifications but really we just have to wait and see.  Am I likely to be faced with prosecution? Probably not but for sure not right away.  There’s an RCMP investigation in process regarding trafficking of BC girls to Warren Jeffs in Texas that will have to be complete and then they’ll focus on Bountiful.  I think that it was pretty clear in the proceedings that all sides have a problem with the law as it stands.  I think some direction on interpretation to make it possible to prosecute under this law is the worst that can happen. I felt that the plight of honourable loving polyamorous families was heard by Chief Justice Bauman and I believe any such interpretation will not include us.   Direction that the law is written so poorly that interpretation would in essence rewrite the law is the best outcome for all really.  Legislation that leaves no loop holes for those who truly do not have the best interest of others at heart and a zero tolerance for the abuse of men, women and children wherever it is found are shared interests in all of the participants in this case.   Legislation that does not criminalize the victims ought to be a key here as well.

I don’t think that there are many who have read the press or the actual documentation from the proceedings that would see the victims of abuse at Bountiful and other such colonies continue to suffer.  The problem is in assuming all multi-partnered households operate the same way.  Abuse is found in monogamous homes and perfectly healthy families exist in a multi-partnered families.  The structure of the relationship does not protect the individuals from being presupposed to abusive relationships nor accepting a growingly abusive relationship as it insidiously begins with that first inappropriate comment or action.  The core of it is between the ears of each and every one of us.  Self-esteem and those inner tapes from our childhood that tell us how to treat other people and what to expect and accept from other people.

How do you legislate that?  In a monogamous setting when the spouse is battered enough, the abuser is thrown in jail – maybe- there are restraining orders – maybe- there is court ordered treatment for addictions and psychiatry – maybe.  The resources are not there really to support any kind of recovery but it can take place to varying degrees.  The victims have transitional housing, financial help, counselling and more often long term adjustments and deep poverty.  The courts are involved, the police, the children’s ministry, non-profit support services, church groups, family members.  Legislation that is clear is difficult to enforce when intimate relationships and domestic abuse or child abuse occurs.  The end to abuse starts between the ears of the victim and the abuser.  They have to understand what is really occurring and why it is not acceptable.  When we truly believe that we deserve no better treatment or some higher power demands that we endure or participate in verbal, emotional or physical treatment of ourselves or another such that we/they are battered and miserable to ANY degree – not just when they arrive in the emergency ward – the input of friends, family, police or ministry personnel may or may not have much of an impact.  The message has to get past the ears, through all that grey matter and into the heart and belief system of the individuals.

The message that human life is meant for exploration, growth, freedom and happiness and that every human has a right to be happy, appreciated and loved. Every human being has a right to expect those who love them to treat them with respect and kindness.  You don’t have to do anything to deserve it.  You exist and thus deserve it same as those who would deny your happiness in preference to their own.

The province of British Columbia just introduced amendments to its Family Relations Act to address domestic abuse and look at these issues from the perspective of the well being of the children involved. In a nutshell, all decisions are to be based on what is best for the child and all other rights take a second place to that.  Terminology that is gender based or a bit antagonistic (parental support now instead of maintenance etc.) will be removed.

The law and those who enforce it begin to speak to the sense of self of the parents and child and the mission of parenthood which is the well being of the child.  Legislation valuing people is a good step towards those people valuing themselves.

Regardless of the decision in this case and the process of appeal or amending legislation that may take years, the work at Bountiful  – and anywhere domestic and child abuse is secreted in homes of every description across Canada – has only just begun.  Eradicating domestic and child abuse in my life time is a dream that I continue to dream.  What a wonderful country we’d live in where every child – male or female – grew up to experience a life where intimate partners’ and family members’ support and empowerment is the norm and stories of domestic abuse and child abuse are only in the history books.

( reposted from dearpollyamorie.blogspot.com with permission)

There will be about an hour and half of supervised early access for the parties’ counsel and the media, but any counsel or media people who participate will not be allowed to communicate with the “outside world” until release time. John Ince, our Chief Counsel, will be participating and will be available for interviews at the courthouse immediately upon release of the decision.

We will also be running a “hotline” for press questions starting at 10:00, and will be putting our reactions on this blog and elsewhere as we digest the judge’s reasons.

[Updated 2011-11-09 12:43 PST]

Friends of CPAA Advocacy Team

Visit this group

We are actively recruiting people who would like to participate in a coordinated advocacy team. There are tasks for all levels of “out”-ness and comfort:
- Media watch (spot articles to which we ought to be responsive)
- Write letters to the editor, and /or letters to politicians and bureaucrats.
- Visit/phone MP’s and MLA’s.
- Briefly talk to people in your every day activities.

Groups forming all across Canada and meeting once per month in a home near you. These meetings will provide you with training and information to participate at your most comfortable involvement. Skype contact between groups to keep our heart fires burning across the country. For more information email info@polyadvocacy.ca

Polyamory is a growing social phenomenon that is becoming more visible and whose members seek to challenge discriminatory laws and policies that would criminalize their families. This was a main theme of the April 11 Panel Discussion hosted by the Vancouver Polyamory Group (Vanpoly) at The Junction House Pub in Vancouver that drew about 150 supporters. The panel coincided with the closing arguments of the British Columbia Supreme Court hearing on the constitutionality of Canada’s anti-polygamy law (Section 293 of the Criminal Code). The case is hearing evidence on two issues: Is the anti-polygamy section of the Criminal Code consistent with the Canadian Charter of Rights and Freedoms, and what are the necessary elements of the polygamy offence as it is set out in the Criminal Code? Even the supporters of the criminal law have given it 5 different interpretations and polyamorists are rightly concerned that some of their relationships—where more than two people live together in a marriage-like relationship—are capture by the criminal law.
The Canadian Polyamory Advocacy Association (CPAA) is an intervener in the case, and the group’s lawyer, John Ince, argued on April 13 that the Attorney Generals of British Columbia and Canada offered “no evidence of harm that justifies the criminalization of polyamorist families.”

The panel, facilitated by Zoe Duff, included Janet W. Hardy who is a writer and sex educator, and founder of Greenery Press. She lives in Oregon and is the co-author of The Ethical Slut; Terisa Greenan who is based in Seattle and has penned numerous short stories and two adapted screenplays; John Ince, author of The Politics of Lust and legal counsel for the Canadian Polyamory Advocacy Association; and Kiki Christie, the founder and facilitator of Victoria Poly 101, a polyamory discussion group in Victoria.

Zoe asked the panel a number of thoughtful questions that drew from the panelists’ expertise on polyamory. Janet Hardy replied to a question about how the popularity of polyamory has increased in the past decade by discussing the importance of the Internet to building community. She noted that queer communities have practiced loving multiple relationships for many years, but they didn’t call it polyamory. The Internet has facilitated more people to embrace a polyamorist identity.

In answering a question on discrimination, Terisa Greenan discussed how one of the actors who plays a character on her polyamory-themed hit comic web series “Family” was let go after shooting a commercial for an Australian olive oil company. Producers said that the owners had received links to “Family” and because of the nature of the show, no longer wanted the actor to represent them. Terisa said that the actor is not a polyamorist but was tainted by association. These experiences of discrimination are common for those willing to come out as polyamorist or for those just associated with the movement.

John Ince drew a parallel between polyamory and the lesbian and gay movement. He pointed out that it wasn’t until 1969 that gay sex was decriminalized in Canada, and that the progress made by lesbians and gay men would have been unfathomable in the 1960s and 1970s. Drawing a parallel, Ince told the audience that the current B.C. Supreme Court reference case will mark a turning point for the polyamorous community. The discrimination that polyamorists experience is now gaining more public attention as part of a broader conversation about whether their families should be criminalized.

Kiki Christie discussed how polyamorous communities have amazing consistency across the border. Part of this is due to the Internet and part is due to the amazing tolerance and welcoming environment that polyamorous communities support. Networking across the border has strengthened the movement and made it more resilient.

The panel discussion was following by a Q&A discussion with the audience, asking a range of questions from generational differences in the practice of polyamory to what can people do to help. All-in-all, this was an extremely successful event that highlighted the increasing cohesiveness and momentum of the growing polyamory movement.

Schedule of presentation of closing arguments are here:

The text of closing arguments, as well as all other documents are here.

Our closing argument was designed to piggy back on the closing argument of the Amicus, who did a great job focusing on the law generally. He also has a significant section in his brief on international law, including US. The CPAA closing is focused on the facts surrounding polyamory.  John Ince intends to read the affidavits of our poly families into the record as part of the closing, as we did not present any oral evidence.

You will see from the closing arguments of the Attorneys General of Canada/BC, that they try to minimize the meaning of the literal words of the criminal law, the extent of polyamory, and the impact of the criminal law section on polyamorists so as to convince the court that the Canadian law should be upheld.

• Be aware of what is a stake in this law that has never been effectively enforced but is touted as the only answer to a huge community problem in one small Canadian locality.  The actual documents are long and the archive site is hard to negotiate and we know that too.  Check out an ongoing summary of transcripted testimony at www.dearpollyamorie.blogspot.com (which has to have an adult content disclaimer only because it talks about multi-partner relationships)

• Be willing to speak out to your neighbours, friends, MP’s MLA’s and the media in all possible formats.   Write that letter.  Make that online comment.  Be informed and share that knowledge.  We’ll be posting more on this website to help you with that.

• Make your voice heard for those across Canada who have a right to live in a loving happy home in peace and without discrimination.

• Speak out for the enforcement of laws already on the books to deal with trafficking of children, child brides, child abuse, spousal abuse, welfare fraud and all the harms associated with men/women who are very good at oppressing other family members for whatever stated purpose or ultimate intent – whether those men/women live in monogamous or multi-partnered households.