Archive of the Victoria, BC, Canada, discussion group.
Thursday, February 3, 2011
CPAA's letter to Loving More: an update on the polygamy law case in BC
Dear Loving More organization. I am writing to update you on the progress of the Canadian litigation. We would also like to express our support and gratitude for the support of the Loving More organization and of the Polyamory Leadership Network both at the conference in Seattle (where we made a presentation on the litigation) and since then. We have had donations since then of approximately $3000 toward the cost of the litigation and when combined with the volunteer efforts and donations of our volunteers, that money provides us with the ability to cover initial costs and cover some of the costs of the likely, upcoming appeals You will recall that the litigation is about s.293 Criminal Code of Canada, a law which criminalizes polygamy but also makes it a criminal offence to enter into 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. It is also criminal to celebrate such a relationship and it is not necessary to prove that sex is or was intended to be a part of it. Although rarely prosecuted, the Attorney General (AG) of the province of British Columbia, wished to use the section to prosecute an insular, highly fundamentalist Mormon sect (Bountiful) which practices patriarchal polygyny and against whom there were concerns alleged about abusive behaviours, marriage to underage girls, etc. The AG was given advice by prosecutors that the law was unconstitutional and, under political pressure to address the issues alleged at Bountiful, decided to ask the court a constitutional reference question (essentially, for a judicial and highly persuasive legal opinion) as to the constitutionality of the law. That question is what this court case is about. The parties to the litigation are the Attorneys General of Canada and British Columbia (for s.293) and the Amicus (friend of the court, appointed to argue against s.293). The court allowed Interested Parties to come forward and 12 organizations originally did so, including one of the Bountiful communities and various children and women's rights organizations and civil liberties groups. The Canadian Polyamory Advocacy Association (CPAA) was formed to become an Interested Party and present a polyamorous point of view to the court. By November all the evidence was filed with the court. Five families from across Canada have provided to the court affidavit telling about their family situations for which they feared they would be viewed as criminal given the wording of s. 293. The CPAA has also filed the results of a survey, a 500 page Brandeis Brief of research and reports respecting polyamory, and four books supportive of polyamory all of which are intended to show the court that polyamory is not a "fringe" movement and that is has something of value to offer to people and society such that it should clearly not be criminalized in any way. In November all the opening arguments were filed and on November 22 opening arguments were begun. The AG for Canada argued that the law is legal and could be read to require that it only become illegal to live together as a married couple if one had a ceremony to celebrate it. The AG for BC argued the law was legal, but if it was not, then since the governments could only show that there were harms to patriarchal polygyny and could not show that there were harms to polyandry, then it was legal only if someone lived in a configuration with one man and more than one woman. Legal counsel for the CPAA, John Ince, presented a brilliant opening argument pointing out the challenges of both of these positions and suggesting that the AGs might have "lost their moral compass" in trying to argue for the constitutionality of the section on these grounds. The BC Civil Liberties Association arguments aligned with those of the CPAA. Other organizations argued for reading down the law to make it constitutional or to read in elements of abuse, disparity of power, etc. There has been no evidence presented which indicates there are harms to polyamory and no one has asked to cross-examine the CPAA witnesses, so CPAA has chosen to call no witnesses or present further evidence in court. The CPAA position is that if no harms have been shown, then the law should be ruled as unconstitutional vis a vis polyamorous families. Media attention has been wide, nationally and internationally. The CPAA has declined requests during this busy trial preparation period to be part of a documentary and has referred requests to the Loving More organization, which has assisted documentarians and other media people with finding polyamorous families and people who are willing to be interviewed. Media media attention has recently been on patriarchal polygyny and Bountiful since the parties and many of the witnesses, both for and against s.293, are focused on arguing about the harms of patriarchal polygny. Some women who are members of these communities have been able to testify anonymously to protect them from criminal prosecution and so the court could hear their testimony. There are also social science witnesses who have testified about the harms of patriarchal polgyny and how they view it possible that even in a culture such as that of Canada, we will--if polygamy is legalized--tend toward patriarchal polygyny resulting in more unmarried men and increased violence. The Amicus has been questioning these experts and witnesses.CPAA legal counsel has been working closely with the Amicus throughout the trial. The final witnesses will be called in February and there will also shortly be a hearing on whether the CBC--Canada's national television station--will be able to record and televise the closing arguments. Closing arguments will be heard sometime in late March and early April, 2011. Those of us volunteering with the CPAA are now promoting the holding of Polyamory Forums by polyamorists across Canada. Polyamorists in Victoria, British Columbia, held a forum at the University in late 2010 which received a lot of media attention. We are hoping to host one in Vancouver shortly after the closing arguments are heard so as to focus public attention at that time on polyamory. There may also be one on the East Coast. We also intend to promote the Polyamory House Party weekend. CPAA webpage:http://polyadvocacy.ca A blog of the proceedings:http://dearpollyamorie.blogspot.com/ Court documents and certified transcripts (caution: note that there is a publication ban on some of the witness' statements): https://docs.google.com/?tab=mo&authuser=0&pli=1#folders/folder.0.0B-URIT52yhx4MDVkMDU5MDctZDM0Zi00ODQ4LWJkNWEtMWVjNmRjMGE2ZjQ0 It was a pleasure to meet up with you all at the Loving More Conference and we hope to continue our alliance and friendship in pursuing our mutual advocacy efforts. Carole Chanteuse CPAA