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

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

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:
A blog of the proceedings:
Court documents and certified transcripts (caution: note that there is
a publication ban on some of the witness' statements):

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

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