Canadian Polyamory Advocacy Association

Winding up the policy consultations

jbash — Thu, 26 Aug 2010 13:38:55 +0000

It’s time to start getting the rest of the policy statements adopted.

They’ve been up for discussion for several months, with minimal feedback, most of it positive or neutral. In all probability, we’re going to end up adopting policies very similar to the suggestions unless somebody clearly objects soon.

Just to be clear, we want to hear from all interested community members. You do not have to be a CPAA member, you do not have to be a CPAA volunteer, and you don’t even have to be poly. In fact, we will listen to comments from people who don’t even approve of polyamory, provided that they are civil, offer something constructive, and don’t pretend to be speaking for poly people.

We can’t guarantee to actually act on every comment, no matter who it comes from. We want to represent the consensus of the polyamorous community, but there will always be a few genuine community members who disagree with anything we say. Nonetheless, we will at least consider every comment. We’re doing our level best to address all significant concerns, and to reflect the views and values broadly accepted among those identified with the label “polyamory”.

In order to adopt the statements, we need final text. The procedure is to issue a “last call” for each proposal, and allow a comment period during which the text is “frozen” so people can give up or down opinions. If we make any changes to the text, we need to start another comment period.

Anybody who even suspect he or she might possibly want to suggest any changes to any of the statements, or to object to any of them outright, should therefore do so now.

Here are the statements:

Patriarchal polygyny, isolated communities, religious excesses, etc.

This is the longest one, the trickiest one, the one most likely to need changes, and one of the two we probably need first after the fundamental statement. I think it’s the top priority.

I may suggest that we modify this one before last call to make a slightly bigger distinction between the “autocratic” aspect of groups like the FLDS and their “patriarchal” aspect. There are some other comments that may need to be addressed, including one with detailed text suggested. It’d be great to get other opinions on those comments. I’ll also review the text in the light of what I know about patriarchal polygyny that I didn’t know when the suggestion was drafted.
Child brides in Canada

Probably less controversial than the patriarchal polygyny statement, but definitely an issue where want to be clearly in the right. There’s some optional/additional text that was posted at the same time as the basic statement, and there hasn’t been much feedback on whether or not to include it.
Definition of polyamory

This one is the least complete and least fleshed out. And I’m quite surprised by the related poll results. Anybody who’s not satisfied with the definition we’re using now should really try to get the debate moving on this one… and it looks like that’s a lot of people.
Official poly marriage

This one will probably take a huge amount of discussion, but I don’t think it’s critical that we have it right away. However, if the discussion doesn’t actually *happen*, then we will *never* have a statement, even when the time comes for us to need one. So let’s not ignore this one.
Fundamental policy

Already in last call, although there’s a chance it may come out again.

FAQ: The Litigation, the Law, and the Charter

jbash — Wed, 16 Jun 2010 17:17:36 +0000

Here’s our FAQ on the section 293 litigation, s. 293 itself, how it connects to the charter, our position, our reasons for participating in the case, etc.

List of questions in this FAQ

What is the litigation about?
What do you want the court to say about s. 293?
How does s. 293 violate the Charter?
If you win, will polygamy be legal in Canada? Will multiple marriages be recognized?
Don’t treaties require Canada to keep s.293?
How would you have the law address abuse in multiple relationships?
Is s. 293 or the court case about sex?
What’s the actual text of s. 293?
Why was s. 293 originally enacted?
How has s. 293 been used?
Who has been prosecuted or found guilty under s. 293?
Why are you intervening if you are not being targeted?
Are you defending abusers?
Is the bigamy law (section 290 of the Criminal Code) also unconstitutional?
What makes you think Canadians would support decriminalizing polyamorous marriage?

What is the litigation about?

The Attorney General of BC has asked the court to decide whether section 293 of the Criminal Code, Canada’s so-called “polygamy law”, is constitutional. S. 293 prescribes criminal penalties for all multi-person conjugal relationships, not just for formal marriages.

S. 293 subjects polyamorists to imprisonment for living together in committed relationships. We believe that the section breaches fundamental guarantees of the Canadian Charter of Rights and Freedoms, and so do many independent lawyers and legal scholars.

What do you want the court to say about s. 293?

We want the court to confirm that the section is unconstitutional.

It is wrong to threaten Canadians with 5 years of jail time for living in loving family relationships.

How does s. 293 violate the Charter?

S. 293 violates the rights to freedom of conscience, religion, and association, which are guaranteed under Charter sections 2 and 5.
S. 293 is vague, and it removes some of the presumption of innocence in criminal trials. These provisions violate fundamental justice, which is guaranteed under Charter section 7.
S. 293 discriminates against an identifiable group on the basis of an issue of defining importance to them: their desire to live life in the manner of their choice with the mates of their choice. This violates Charter section 15.
S. 293 fails to preserve or enhance Canada’s multicultural heritage as required by Charter section 27.
S. 293 isn’t justifiable in a free and democratic society under Charter section 1–

Its measures are disproportionate and not directly connected to any harm to anybody. The abuses people want to control using s.293 aren’t directly related to multiple partners. In fact, they happen in monogamy all the time.
It doesn’t effectively protect anybody. In fact, s. 293 makes it more difficult to address abuse and exploitation in relationships, because the victims, or people they care about, may be subject to punishment for their multi-partnered relationships. That makes them less likely to seek or receive help.

If you win, will polygamy be legal in Canada? Will multiple marriages be recognized?

Removing section 293 will not change Canada’s definition of marriage or cause multiple marriages to be be recognized. Adults living together in committed relationships just won’t be subject to imprisonment simply for having multiple partners.

Don’t treaties require Canada to keep s.293?

No treaty demands that Canada criminalize any particular marital structure.

The international convention most commonly mentioned in this respect is CEDAW, the Convention on the Elimination of All Forms of Discrimination against Women.

In very abbreviated summary, the Convention requires Canada to protect the human rights of women and children, to act against gender-based discrimination, abuse and exploitation, and to promote the full, equal, and participatory citizenship of women. With respect to marriage, Canada is required to ensure women’s equality with men in the rights to marry, to freely choose their spouses, and to have the same rights and responsibilities as men during marriage and at its dissolution, as well as a variety of other rights when married, none of which is connected to multiple marriage. Canada is required to protect women from discrimination based on their marital status. Canada is also forbidden to recognize child marriages or betrothals.

There is no requirement to criminalize multiple marriage, or not to recognize it, provided that men and women are given identical rights, that child marriages are prevented, and that abuse, exploitation, and discrimination are addressed. The same requirements apply to monogamous marriage.

Those who claim that Canada is required to outlaw multiple marriage appear to believe that such marriage is, in itself, a form of discrimination against and/or abuse of women. We suspect that many of them also believe, perhaps based on their experience in traditional cultural contexts, that the only viable or significant form of multiple marriage is heterosexual, cisgendered, patriarchal polygyny. The lived experience of polyamorists shows us that these are misconceptions.

Unfortunately, these errors appear to be pervasive in the deliberations of the UN Committee on the Elimination of Discrimination Against Women, which is responsible for monitoring compliance with the similarly named Convention. The Committee has therefore issued many documents and recommendations which fail to distinguish between multiple marriage per se and abusive patriarchal practices, lumping the two together under the heading of “polygamy”. It’s important to note that only the Convention itself is a binding international commitment; the opinions of the Committee are simply opinions.

How would you have the law address abuse in multiple relationships?

Abuse should be addressed directly, without reference to the number of people involved in a relationship.

Many applicable laws are already on the books and should be enforced. New laws may be needed to address particular abuses in conjugal relationships. Abuses are possible in any relationship structure, including monogamy, and no law, existing or new, should mention the number of people involved. The proper concerns are such things as validity of consent, coercion, undue influence, maturity of the participants in a relationship, and the actual treatment people receive.

In any case, providing support and alternatives to victims or potential victims of abuse is far more important than outlawing things. The criminal law is not a good tool for solving every social problem.

Is s. 293 or the court case about sex?

Section 293 isn’t about sex. As far as the law is concerned, Canadians can have sex with as many people as they like… as long as they don’t try to act married. We’re criminalized only when we form committed families.

Section 293 forbids “conjugal union” with more than one partner. The legal definition of “conjugal union” is complicated, but it basically means “living as if you were married”. Although sex is an important part of most conjugal relationships, there are conjugal relationships without sex, and many sexual relationships are not conjugal.

What’s the actual text of s. 293?

Section 293 of the Criminal Code of Canada says:

293.

Every one who

practices or enters into or in any manner agrees or consents to practise or enter into

any form of polygamy, or

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

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.

Evidence in case of polygamy

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.

Why was s. 293 originally enacted?

The section was enacted in 1890, during a continent-wide moral panic over polygamy among Mormons (at that time including the mainstream LDS church, which was then practicing polygamy). The parliamentary debates were primarily concerned with perceived threats to the Canadian social order from the introduction of Mormon institutions, especially polygamy, and with the “need” to demonstrate to immigrating Mormons that they would have to conform to the norms of Canadian society in the 19th century.

The text has not changed substantively since that time. Minor changes have included removing specific mention of Mormon plural or spiritual marriage.

How has s. 293 been used?

The section was originally intended for use against Mormons. In fact, early drafts specifically exempted First Nations people. However, once enacted, it appears to have been used mostly to force the First Nations to become monogamous. This resulted in a great deal of dislocation and deprived many First Nation second wives and children of recognition or legal protection. Actual prosecution was apparently used less than the threat of prosecution. Other government policies disadvantaging multi-partner First Nation families were justified using the existence of s. 293.

Who has been prosecuted or found guilty under s. 293?

Bear’s Shin Bone, a member of the Kainai, or Blood Tribe (in the Blackfoot confederation of First Nations), was convicted in 1899. There were other prosecutions in the early to mid 20th century, but we know of no other convictions. Some cases may have gone unrecorded. No charges appear to have been brought from the 1940s until until very recently.

Recently, the Crown sought to charge Winston Blackmore and James Oler of Bountiful, BC, both patriarchal polygynists who are leaders in “fundamentalist Mormon” religious groups. The first two special prosecutors appointed refused to bring charges because of the constitutional problems with s. 293. A third agreed to charge the men, but the court dismissed those charges on the grounds that it was improper for the Attorney General to override the decisions of the first two prosecutors. The Government then began the present reference case as a way of clarifying the constitutional issue.

Why are you intervening if you are not being targeted?

First, section 293 is bad law, and we have no guarantee that it will remain unenforced against us. At any future time, any individual prosecutor could choose to use the section against polyamorists, even if there is a general understanding right now that the law should not be applied to us.

Second, the existence of such a law stigmatizes polyamorists by calling them criminal.

This stigma affects families in their interactions with other Canadians and with government authorities. People are sometimes afraid to disclose their family relationships. The stigma may affect the decisions of authorities in areas such as family and immigration law. The law has discouraged some polyamorists from making binding commitments to each other as would monogamous couples.

Polyamorous relationships are as natural and valuable as monogamous ones, and the law should not say otherwise. It’s wrong to criminalize a way of living which, in itself, harms nobody and enriches many.

Are you defending abusers?

No. Abuse is wrong, whether in monogamy, in polyamory, or in patriarchal polygyny.

We didn’t choose the timing of this case, and we didn’t choose our allies in it, but it’s unlikely we’ll have another chance to influence the law for a very long time. We must therefore participate.

Is the bigamy law (section 290 of the Criminal Code) also unconstitutional?

We have not fully analyzed section 290.

We think it’s constitutionally acceptable, and appropriate, to prohibit fraud between partners, including secretly taking on more conjugal commitments. We also think it’s appropriate to clarify the rights and obligations arising from older and newer conjugal obligations.

We do not think that it’s constitutionally acceptable to criminalize all formally recognized conjugal relationships involving more than two people. Our initial impression is that the bigamy law in its present form does this, and therefore that it should be rewritten to address the legitimate concerns in another way.

What makes you think Canadians would support decriminalizing polyamorous marriage?

Most Canadians are decent, fair-minded people who don’t want to lock up their neighbors over harmless personal choices.

Society seems to be ahead of the law on this issue. While many polyamorists worry about “coming out” to their families, friends and colleagues, they often find far more acceptance than they expect. Sometimes those who come out do encounter discrimination or ostracism… but not as often as often feared.

The polyamorous community builds its relationships on values shared among Canadians, including gender equality, fairness, respect for the autonomy and free choice of all involved, and affirmative concern of each for the feelings and well-being of the others.

Canadian society has succeeded in integrating many diverse cultures and world views, and is up to the challenge of giving polyamory its due respect.

Some key survey results and a big thank you!

CChanteuse — Sun, 06 Jun 2010 07:05:13 +0000

Hi fellow polyamorists. We’d like to thank you for your contribution to the CPAA 2010 survey. We have already used some of the results in court filings and will continue to use the results as appropriate. Below is a summary of the results which we reported to the court.

Background: The survey ran for one month and focused on seeking some answers from polyamorists who had either lived in or are presently living in a conjugal (marriage like) relationship of 3 or more adults. The questions asked were designed so we could provide the court with relevant information about polyamorists in our role as interveners in the court case respecting the constitutionality of s. 293 Criminal Code of Canada.

Summary of responses provided to the court:

112 people responded advising that they are living in Polyamorous Conjugal Households in Canada (with one respondent per household).

Another 76 respondents said they had lived in such a Polyamorous Conjugal Household in Canada in the past.

The total number of women in the reported Polyamorous Conjugal Households was 167. Men totalled 158. Those identifying as “other” totalled 40 (and they self-identified in comments as gender fluid, transexual, transperson, trans-identified, androgynous, intersex, or gender queer).

Ninety nine (99) respondents did not have any minors (under the age of 19) living in their Conjugally Polyamorous Households who were under the parental care of adults in the household. Another 72 had such minors in the household.

Sixteen (16) Conjugal Unions (of 3 to 5 people) were reported to have been sanctioned by a rite, ceremony, contract or consent other than a legal marriage. Another 30 such Conjugal Unions (of 3 to 4 people) were reported to have been marked by a personal verbal or written commitment to each other.

Forty five (45) respondents reported that their multiple Conjugal Unions had involved witnesses who celebrated, assisted them or were a party to the rite, ceremony, contract or consent that sanctioned the relationship.

Seventy four (74) respondents reported that they believed they were limited in being able to express or practice their religious beliefs or to live in keeping with their conscience as a result of s. 293. Another 33 thought that the law “may” limit them in this way.

Fifty eight (58) respondents were willing to let the CPAA tell the court their family stories if they were not identified. Only thirteen respondents indicated they were willing to have their family stories be told to the court and to be named if need be.

Thank yous!

In particular we would like to thank the 13 families who indicated their willingness to join in and be named in the court litigation. We accepted the offers of 5 families and decided that those would be sufficient to give the court a flavour of what some polyamorous households look like and to form the basis for our legal arguments.

Polyamorous Advocates File Affidavits In Supreme Court Reference

jbash — Thu, 03 Jun 2010 20:58:20 +0000

VANCOUVER — June 3, 2010 — The Canadian Polyamory Advocacy Association (CPAA) today filed its evidence in the BC Supreme Court case concerning the constitutional validity of section 293 of the Criminal Code of Canada. The CPAA will assert that the law is unconstitutional under the Canadian Charter of Human Rights.

Section 293 affects polyamorous families by seeking to criminalize “any kind of conjugal union with more than one person at the same time”, punishable by up to five years in prison.

The CPAA’s evidence includes court statements from polyamorous families in five provinces. Each of these families includes three or more adults living together in committed intimate relationships.

Those who identify with polyamory overwhelmingly reject “patriarchal polygyny”, where only men, and not women, may marry or live with multiple partners (specifically wives).

Polyamory, by definition, requires the knowledge and consent of all involved. The religiously diverse polyamorous community values gender equality, self determination, freedom of choice, and the protection of all from abuse and exploitation.

The CPAA’s statements give polyamory a human face by describing some of Canada’s successful polyamorous relationships. The CPAA also gave the court the results of an Internet survey it conducted this spring, which found many polyamorous conjugal households across Canada. In addition, the CPAA’s filings included social science evidence showing the stability and viability of polyamorous relationships.

For more information: http://www.polyadvocacy.ca

Evidence filed with BC Supreme Court

jbash — Thu, 03 Jun 2010 20:50:30 +0000

The CPAA has filed its evidence with the court.

The main thrust of our evidence was to describe examples of Canadian polyamourous families. We filed affidavits with detailed descriptions of five different healthy, functioning poly groups in five provinces. Each group was described by one of its members.

We also filed an affidavit describing the results of the CPAA’s survey of Canadian poly households, and some social science material. That affidavit is here.

Names and other identifying information have been redacted from some of these.

Update June 10: Some of these weren’t properly set up and weren’t readable to a lot of people. That’s been fixed. Also, Google Docs has problems with PDFs and will sometimes say they’re unavailable. You’ll almost always get the document if you hit reload once or twice. We’re looking into better ways to host these. We’ll probably also either stop redacting names, or stop posting filings.

Legislative history of Section 293

jbash — Thu, 13 May 2010 02:03:09 +0000

Almost a month ago, we posted the Attorney General’s summary of the polygamy statute’s legislative history, but we didn’t have the supporting documents. We can now give you the whole thing.

We have:

The AG’s summary of the history (already posted)
Parliamentary material from 1890-1927 (original adoption was 1890). 192 pages.
Parliamentary material from 1952-2010 (starts with a general cleanup of the Criminal Code in 1952-1954). 305 pages.

The record seems silent about the problems most of Section 293’s modern proponents claim it’s needed to address.

In the 1890 debate, parliamentarians took it as given that polygamy was immoral and deserved punishment. Of course no distinction was made between polyamory and patriarchal polygyny; egalitarian polyamory was perhaps unimaginable to the legislators. There was significant passing mention of Christianity. There was a lot of talk about Mormons who were moving into Canada, and of fears that they might be practising polygamy. There seemed to be much concern that the Mormons’ way of life, including polygamy, was a challenge to established social institutions, and to the order those institutions represented. These 19th century men seemed to value that order for itself, and order was perhaps the center of the (limited) debate.

Some participants in the present case have mentioned valuing social institutions for their own sake. One or two have even emphasized it. However, I think it’s fair to say that social order is not the main thrust of most prohibitionists’ arguments in 2010. In the modern debate, Section 293’s supporters claim that certain harms are intrinsic to multi-partner relationships. The star concerns are abuses of consent, and emotional and psychological harm to women and children. See our previous post for various parties’ position summaries.

If there was any concern in the 1890 record for women or children who might be exploited, in whatever way, in the context of polygamy, I didn’t see it…. not even in the vocabulary of lost “virtue” and “chastity” the same sessions used to discus other sex-related laws.

But you can see for yourselves.

The files the AG provided are huge, and only a few pages actually talk about polygamy. The AG’s brief points to relevant pages; unfortunately we don’t have the tabs that were on the paper copies, but it’s still possible to find the references. You can also search for keywords like “polygamy” and “Mormon”, but be aware that OCR is imperfect and the searches may miss things. If you find anything juicy, please comment here.

Thanks! Survey complete, moving to policy consultation

jbash — Sun, 09 May 2010 03:00:01 +0000

Thanks very much to all who filled out our survey on conjugal households. The information you’ve given will help us to advocate for the poly community.

Special thanks to those who volunteered to be witnesses. We’ll be contacting witnesses over the next few weeks. If you said you’d send your information to us by email, please remember we still need it. The address is “witness” at polyadvocacy.ca.

We still haven’t digested the survey results, and aren’t sure how best to share them. Some of the numbers from the survey affect our legal strategy, and it may be unwise to publish everything immediately. We’ll share what we can as soon as we know how best to do so.

Now that the survey is done, we’re moving to consult the community on the CPAA’s policy positions; see the article about that for more.

Policy consultations: going interactive

jbash — Sun, 09 May 2010 02:43:45 +0000

The CPAA is creating policy statements, and we need to hear from the polyamorous community.

We know Canada’s polyamorists don’t want to be criminalized. We don’t know what else they believe. We need to create a “platform” for the CPAA: positions beyond the Section 293 litigation, as well as positions that my influence how we conduct that case.

We’ve just activated our new forum system. There are forums for several policy concerns. Some of them are subjects we discuss a lot among ourselves. To get everybody else talking, too, we’ve put up some preliminary draft position statements. To keep everybody focused, we’ll open them for discussion one by one.

We’re starting with our “fundamental position”. We believe it should probably be along the lines that monogamy and polyamory should be treated equally. Tell us what you think!

The statements in the forums are very early drafts, not adopted by the CPAA, sometimes controversial among our volunteers, possibly full of mistakes, and definitely subject to change. We’re inviting comment now, early in the process, because we’re committed to hearing from those we represent. To do that, we have to give you raw drafts; if we had polished, finished statements, it would be a show, not a consultation. Please remember that these are not our positions; they’re just suggestions from some of our volunteers.

It’s possible we’ve missed some issues. If so, let us know. The best way to do that is to post in one of the forums we’ve set up for feedback about the CPAA. By the way, we’ve set up forums for feedback about the CPAA.

Ground rules:

Be civil, relevant, and constructive.
Don’t deliberately try to derail the discussion or make it unproductive.
Don’t harass people. Don’t make personal attacks, threats, or the like.
Don’t be unnecessarily offensive.
You can be anonymous, and you can use a pseudonym… but don’t pretend to be somebody you’re not.

We intend to moderate with a very light hand, but will act against any poster who endangers the goals of the discussion by abusing the forum.

Edit May 11: The forum on the definition of polyamory is now open.

Edit May 14: All forums are now open

On peut répondre en français! Nous pouvons lire bien plus que nous pouvons écrire.

COLF and Knights of Columbus drop out

jbash — Fri, 23 Apr 2010 01:29:41 +0000

The Catholic Organization for Life and Family and the Knights of Columbus, BC and Yukon Chapter, have asked the court to end their participation in the case. This request will almost certainly be accepted as a matter of routine.

We have their letter and proposed consent order, but won’t be posting them for public view. The cover letter includes the names, telephone numbers, and email addresses of all the lawyers involved in the case, and of several other people whose contact information we don’t know to be entirely public. There’s no content beyond the statement that they want to drop out, so it wouldn’t be worth the effort to redact that information.

Neither the letter nor the proposed consent order gives any reason for their wanting to end their participation.

Their position upon applying to intervene was in favor of keeping Section 293.

Blackmore denied party status

jbash — Wed, 21 Apr 2010 15:26:31 +0000

The list of players is shaping up. As reported in many places in the media, Chief Justice Bauman has denied Winston Blackmore full party status in the Section 293 reference case, and has also declined to order the government to pay Mr. Blackmore’s legal expenses. Mr. Blackmore has been offered the same “interested person” status as the CPAA and other people and organizations involved in the case.

Mr. Blackmore’s participation was the last “question mark” about who would be arguing and presenting evidence in court.

The court has posted the judge’s reasons for this ruling on its Web site.

This ruling may mean that Mr. Blackmore will choose not to participate in the proceeding at all. The court quotes an affidavit by Mr. Blackmore’s (which we do not have on the Web at the moment), as saying:

“While I understand that the Court has appointed a lawyer, an Amicus, to argue that the polygamy law is unconstitutional, I am not willing to allow the Amicus to access myself or my Congregation for the purpose of obtaining the evidence he might need to challenge the law. I have spoken with most of the people in my Congregation and they are of the same view. Given my past experience with the government and the police, which I consider to involve religious persecution and the continued prospect of future criminal proceedings, neither I nor my Congregation are willing to be represented in the proceedings except by a lawyer of our choice. I have an established relationship with Mr. Arvay and trust him to represent my and my Congregation’s best interests in this matter. I will not participate in these proceedings, nor will my Congregation, without an order for funding.”

It’s probably worth mentioning that Mr. Blackmore is not the only person from Bountiful involved in the litigation. James Oler, FLDS Bishop of Bountiful, and the FLDS itself, are participating separately as interested parties. The full list of interested persons, with their position statements, is in our last update.