FAQ: The Litigation, the Law, and the Charter

• By Zoe
• Posted in Blog, FAQ
• On June 16, 2010
• 5 Comments.

NOTE: SOME OF THIS FAQ IS OUT OF DATE. WE ARE REVISING IT BASED ON CHIEF JUSTICE BAUMAN’S DECISION OF NOVEMBER 23, 2011, AND ON OTHER NEW INFORMATION WE’VE GOTTEN SINCE IT WAS WRITTEN OVER A YEAR AGO. IN THE MEANTIME, USE WITH CAUTION.

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.

Table of Contents

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• Why was s. 293 originally enacted?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?

1. S. 293 violates the rights to freedom of conscience, religion, and association, which are guaranteed under Charter sections 2 and 5.

2. 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.

3. 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.

4. S. 293 fails to preserve or enhance Canada’s multicultural heritage as required by Charter section 27.

5. S. 293 isn’t justifiable in a free and democratic society under Charter section 1–

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.

2. 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.

1. Every one who
1. practices or enters into or in any manner agrees or consents to practise or enter into
1. any form of polygamy, or
2. 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

2. 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 

2. 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.