Post edited 7:23 pm – December 9, 2010 by jbash

Robert Horton said:

In this trial one of our freedoms hinges upon how the Court interprets the use of the term marriage as used in the Criminal Code.

Actually, the word "marriage" only appears in Section 293 in the context of excluding de jure marriage from consideration. What's forbidden is

"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".

Neither "polygamy" nor "conjugal union" is further defined.

It's also clear that not all multiple sexual relationships are criminalized. It's very well established that sleeping around, adultery, and indeed group sex are legal in Canada. The issue is conjugality, not sexuality. Basically what's being criminalized is forming a family, what you call "de facto" marriage.

There's some wrangling over what elements are necessary to produce that marriage-like arrangement, basically over the definitions of "polygamy" and "conjugal union".

The AG of Canada is arguing that some kind of formal ceremony or act of adoption is necessary for "polygamy", because "polygamy" is a form of what you call "de facto marriage", and without a ceremony it's not enough like getting married. I can't quite figure out their answer for why that applies for the part about "conjugal union"; there have always been informal conjugal unions.

The AG of BC, on the other hand, argues that simply living together and acting like a family is sufficient to create one or the other… but only if it's one male with multiple females. They say that's because of the 1890 legislators would only have been thinking of that form of "polygamy". Again I can't quite figure out what they think the "conjugal union" part means; apparently they think that legislators in 1890 didn't mean "person", rather than "woman", when they wrote "more than one person".

Some of the other interested parties are arguing that other elements are required, for instance the question 2 elements of "a minor, or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence". I think that's a tough sell, given that the statute doesn't mention those things at all and it's pretty hard to swallow the idea that the 1890 Parliament meant to require them. "Reading down" doesn't extend to "adding completely new subject matter".

The CPAA, the Amicus, and most of the parties on the anti-293 side are arguing that 293 means what it says and intentionally criminalizes polyamorists living in family relationships.

As for what to replace it with, there are two parts: what the court should say and what the eventual outcome should be after the political process has played out. We have to remember that Parliament can override the Charter if it decides to do so.

On the first question, the court isn't going to "recommend" anything. The court will issue an opinion on whether section 293 is valid under the Charter, and on what the text actually means. That's just a technical opinion, not a recommendation for change, although the judge may of course choose to comment on what other sorts of laws might or might not pass constitutional muster. The decision is a matter of existing law, not of what "we" prefer. I think it's pretty clear that section 293 as it stands is unsalvageably unconstitutional and should just be struck down outright. That's the position the CPAA has taken in court.

As for the more general, political part, my personal position, which I hope we will eventually find to be the community consensus position and thus the CPAA position, is that there should be no "polygamy law" whatsoever. It may be acceptable to outlaw certain abuses in marriage, but such laws should apply equally to monogamy and shouldn't mention the number of people involved in the relationship.