Closing arguments posted in Canadian litigation March 2011

Greetings to all

Written closing arguments have been filed. 
Oral closing arguments are expected to be heard between March 28 and April 8 (10 days).
The CBC (Canadian Broadcasting Corporation) has obtained the right (a first in BC) to video tape court proceedings and will do a webcast (video and sound) of the closing arguments.  

The closing arguments, as well as all other documents are here.  
https://docs.google.com/?tab=mo&authuser=0#folders/folder.0.0B-URIT52yhx4MDVkMDU5MDctZDM0Zi00ODQ4LWJkNWEtMWVjNmRjMGE2ZjQ0

Our closing argument was designed to piggy back on the closing argument of the Amicus, who did a great job focusing on the law generally. He also has a significant section in his brief on international law, including US. The CPAA closing is focused on the facts surrounding polyamory.  John Ince intends to read the affidavits of our poly families into the record as part of the closing, as we did not present any oral evidence.  

You will see from the closing arguments of the Attorneys General of Canada/BC, that they try to minimize the meaning of the literal words of the criminal law, the extent of polyamory, and the impact of the criminal law section on polyamorists so as to convince the court that the Canadian law should be upheld. 

Regards,
Carole Chanteuse 

Vancouver Poly Panel: April 11, 2011

In conjunction with the closing arguments of the British Columbia Supreme
Court hearing on the Constitutionality of Polygamy in Canada, as it relates
to Section 293 of the Criminal Code, the Vancouver Polyamory Society and the
Canadian Polyamory Advocacy Association will be hosting a Panel Discussion
on the aspects and realities of Polyamory .

The Panel Forum will take place at The Junction Pub, 1138 Davie Street, 7pm.
Vancouver, BC, on April 11th, 2011, from 7:00 to 9:00 PM.*

With this court hearing generating a significant amount of discussion
regarding the validity and constitutionality of the lifestyle choice of
Polyamory within Canada’s society, this forum will allow present
practitioners of Polyamory and those interested in learning more, an
opportunity to discuss the benefits and pitfalls of this growing lifestyle
approach to consensual conjugal unions.

Presenters from North America have been gathered to speak at this
informative forum:

*Janet W. Hardy* is a writer and sex educator, and founder of Greenery
Press, living in Oregon, USA.  She has also been published as Catherine A.
Liszt and Lady Green. She is the author or co-author of ten books, including
what is commonly referred to as the Polyamory Bible: *The Ethical Slut*. She
frequently collaborates with Dossie Easton.

*Terisa Greenan* has a sharp wit and impeccable comedic timing. Based in
Seattle, she is a writer, having penned numerous short stories and two
adapted screenplays with much original content. In addition, Terisa has
directed and produced for both stage and screen. She formed Petal Films in
2007. In the fall of 2008 Terisa launched 3 Dog Pictures to showcase her new
episodic web series "Family", a series depicting a Polyamorous Triad.

*John Ince* is a lawyer, politician, an erotic arts enthusiast, and the
controversial author of a book called The Politics of Lust. He founded The
Erosha School of Erotic Massage and The Art of Loving, a sexuality center in
Vancouver, British Columbia. He is also the leader of a political party, the
Sex Party (British Columbia).

*Kiki Christie* is the founder and facilitator of Victoria Poly 101, a
polyamory discussion group in Victoria, British Columbia of over 150
members.  She's been a bi/kinky/poly educator and activist for over 6 years
and has given workshops for various poly groups in British Columbia as well
as in Washington state and Austin, Texas. She is a member of the Canadian
Polyamory Advocacy Association and she is currently the Director for
Vancouver Island Polycamp.

Contact: R.Billard, karoavga@gmail.com, 604-619-0529

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

Canadian Polyamory Advocacy Association news

Poly Love may be Criminalized in Canada. The Canadian Polyamory Advocacy Association is asking for both funds and community support to resist this attack on our community.

Please fundraise or donate! Consider holding a poly community pub night or event for the CPAA. We have been operating a very tight, totally volunteer driven campaign on a very limited budget and we’re now starting to have expenses in excess of our $1,100 of seed money. (see below for more info on what we’ve managed to do on those funds! Holy cow!) For continued effective and more fulsome representation on this issue, a donation of any amount would be very helpful. Please send a Paypal payment to donate@polyadvocacy.ca or send email to support@polyadvocacy.ca for instructions on how to send a cheque.

Trial begins November 22! Consider organizing a community event that day or the weekend before to celebrate polyamory and show your support. Send us pictures or a blurb. Talk with your MLA or your MP about polyamory and tell them that loving families should not be criminalized just because they involve more than 2 adults in a marriage-like relationship. Our governments need to know that ordinary Canadians do not want poly to be criminal.



Background: As many of you will recall, the Canadian Polyamory Advocacy Association (CPAA) was formed by well known people in the polyamory community to advocate for polyamory in the Canadian court case on Canada's criminal law against multiple, conjugal living arrangements and polygamy (s. 293 Criminal Code). The court is going to be giving its opinion on whether the law breaches the Charter of Rights and is unconstitutional.



The CPAA’s view is that the law absolutely affects the fundamental freedoms and rights of polyamorists and should be struck down. Loving, families should not be criminalized just because they involve more than 2 adults in a marriage-like relationship.



While the law has seldom been enforced (and was recently aimed at fundamentalist Mormons in BC), scarily it promises 5 year jail sentences to participants, and those assisting/attending celebrations. Visit the Canadian Polyamory Advocacy Association facebook page or our website at polyadvocacy.ca for more information.



Litigation activities and updates: A small group of us got together and formed the CPAA. We got:

-donated seed funds of $1100, now spent on activities (see below)

-a volunteer pro bono lawyer (for a limited amount of time)

-obtained "interested person" status in court

-did a survey of the Canadian poly community which we put into court as evidence

--found 5 witness families from across Canada to swear affidavits about their family stories into court (more volunteered too, thank you!)

--made a pre-trial application to ask the governments to clarify whether they believe polyamorous families’ are criminals under the law (application refused BUT the good news is that the application helped us clarify to media and others that polyamory is very different culturally and in practice than in religious, patriarchal polygamy).

-put into court a 500 page brief of expert and social science evidence as well as 4 books



We are now preparing for the court dates beginning November 22. This includes identifying the witnesses we propose to call and to cross-examine and preparing 2 statements of submission.



Government position: The governments of BC and Canada have so far refused to say that polyamorous conjugal households are not criminal under s. 293. Canada has said nothing about its position on the law but is expected to argue that it applies to polyamorous relationships and is constitutional. BC says s. 293 does criminalize polyamorous households. However, if necessary (if the court thinks 293 breaches the Charter of Rights), then BC might take the position that the law should not be applied to polyamorous relationships. That doesn’t make us feel very safe. Even worse, BC has since put forward evidence and made statements at the pre-trial hearing indicating it might argue that polyamory should be included in the criminal law, particularly polyamorous households in which there is one man and more than one woman (polygnous arrangements).



Please feel free to email us if you have any questions or concerns (support@polyadvocacy.ca). We also have forums open on our website

Poly Survey for Canadian Polyamory Advocacy Association

The Canadian Polyamory Advocacy Association (CPAA) is doing a short survey on polyamorous households in Canada where 3 OR MORE ADULTS ARE LIVING OR HAVE LIVED TOGETHER in a form of "conjugal union".

The CPAA intends to use this information to give Canadian courts and governments information about the number and type of polyamorous Canadian households.  For more information on current litigation and the CPAA, please read our website at  http://polyadvocacy.ca.
---------------------------------------
The survey is located at http://www.surveymonkey.com/s/XT8PM82

5 required questions. Approximately 4 minutes.
(Total: 15 questions. Approximately 10 minutes.)
Ending date of survey: May 7, 2010
PLEASE TELL PEOPLE ABOUT THIS SURVEY!! (even if they don't call themselves "polyamorous")

CPAA update: Intervenor status granted!

The Canadian Polyamory Advocacy Association (CPAA) is pleased to be able to say that on Tuesday, February 16, 2010, the BC Supreme Court agreed that it would hear the evidence and arguments of the CPAA when the Court considers the reference questions put to it by the BC government about the constitutionality of Canada's "anti-polygamy" law (s. 293, Criminal Code).  This means that the court will hear the CPAA's evidence and arguments about how s. 293 breaches the charter rights of polyamorous Canadians: S 293 says that it is a criminal offence to live in a marriage-like ("conjugal") relationship involving more than 2 people.  

Other groups who were granted the same status as "interested persons" are British Columbia Civil Liberties Association; Beyond Borders: Ensuring Global Justice for Children;  British Columbia Teachers’ Federation; Canadian Association for Free Expression; Canadian Coalition for the Rights of Children, jointly with David Asper Centre for Constitutional Rights; Canadian Polyamory Advocacy Association; Catholic Organization for Life and Family, jointly with Knights of Columbus, BC and Yukon Chapter; Christian Legal Fellowship; Fundamentalist Church of Jesus Christ of Latter Day Saints and James Oler in his capacity as Bishop of the FLDS; REAL Women of Canada; Stop Polygamy in Canada; and West Coast Women’s Legal Education & Action Fund.  Mr. Blackmore's application for "party" status will be heard later.   The Government of Canada and of British Columbia are parties to the litigation.

The first round of evidence is due in court in early June, with further evidence due in July and September. 

**  Check out the CPAA's facebook page: www.facebook.com/polyadvocacy

Canadian Polyamory Advocacy Association Press Release

For Immediate Release

Polyamorists Announce Court Application

VANCOUVER -- January 28, 2010 -- Members of Canada's polyamory community have applied to become an intervener in the B.C. government's challenge of section 293 of the Criminal Code of Canada -- Canada's anti-polygamy law. The application, filed in BC Supreme Court yesterday, is on behalf of the Canadian Polyamory Advocacy Association (CPAA).

Polyamory, sometimes referred to as responsible or ethical non-monogamy, is the practice, desire, or acceptance of having more than one intimate relationship at a time with the consent of everyone involved. Section 293 forbids both polygamy and any kind of conjugal union with more than one person at the same time and as such infringes on people's ability to practice polyamory if the relationships involve cohabitation.

"We believe that people should be free to practice polyamory free of any criminal liability, and that the Charter of Rights gives Canadians such freedom," said CPAA legal counsel, John Ince.

"It is not appropriate for a law which prohibits loving, committed, consensual relationships to remain on the books, even if it not presently being enforced," Ince continued.

Newsweek Magazine recently reported that polyamory is a thriving phenomenon in the United States, with over half a million families openly living in relationships that are between multiple consenting partners.¹ Polyamory is also a thriving phenomenon in Canada.

The CPAA, whose purpose is to promote legal, social, government, and institutional acceptance and support of polyamory in Canada, has called for people who practice a polyamorous lifestyle to step forward as potential witnesses, particularly if they are cohabiting with multiple partners.

"Trudeau once famously said 'there is no place for the state in the bedrooms of the nation'. Similarly, we believe that there is no place for the state in the kitchens and the front rooms of the nation," said Zoe Duff, CPAA spokesperson.

"Adult women and men should be able to choose what form of intimate relationship they enter into and with whom they want to share their lives, even if it is more than one person," Duff continued.

Polyamory contrasts with "patriarchal polygamy" practiced in religious communities such as Bountiful, B.C. where men have the right to marry or live with several women, but women have no right to marry or live with several men. Polyamory, on the other hand, is grounded in gender equality, self-determination, and free choice for all involved.

If the issues at communities such as Bountiful are alleged abuse (for example: the abuse of minors, abuse of authority, and marriages that are under age), the abuses should be prosecuted using existing laws that address such abuses.

The CPAA anticipates that his matter may go to the Supreme Court of Canada.

Update on the legal situation in British Columbia as it pertains to practicing polyamory

In December, 2009, the BC Supreme Court agreed to answer a reference question put to it by the provincial Attorney General as to whether Canada's Criminal Code s. 293 is inconsistent with the Charter of Rights.  That section makes it illegal for more than two people to be in a conjugal relationship, whether formally married or not, and carries a 5 year sentence.  It also similarly criminalizes anyone else celebrating or assisting in a rite involving a multiple conjugal union or marriage.

 

The section was originally (1890's) aimed at Mormon polygamists and there is social pressure in British Columbia to again apply the section to the Mormon subsect of polygamists in Bountiful BC to address alleged abuses going on there.

 

While only one person has ever been found guilty under s. 293 (over 100 years ago, an aboriginal man), and only one person has been charged (unsuccessfully) under that section in the last 100 years, the fact that the section is there affects how polyamorists conduct their lives. It also affects other aspects of government policy, including immigration laws.

 

In response to the pending litigation, Vanpoly moderators and members have started an ad hoc working group to intervene in the litigation to present the case of polyamorists as to whether the section infringes Charter rights.  We put out notices to various Canadian poly yahoo lists requesting potential witnesses who could attest that they are living in multiple conjugal relationships.  We have been contacted by some poly families interested in acting as potential witnesses, though we are still interested in hearing from you if you are interested (please email cchanteuse@yahoo.com for details).  We have been joined on the working group by fellow polyamorists and moderators from VanIsle Poly and from Montreal and are now working on forming a Society, tentatively named the Canadian Polyamory Advocacy Association, and preparing the formal documents for the application to court. These documents are due into court on January 28, 2010.

 

We will keep you posted as things progress.

 

Carol (Vanpoly moderator and ad hoc working group member)

Call for Intervenors in BC court case affecting polyamorous people

November 13, 2009


Court case: Upcoming BC Government's Court Reference on the Criminalization of Polygamy and Group Marriages


The BC government will shortly put a question to the Court to test the constitutionality of section 293 of the Criminal Code of Canada which criminalizes people who practice polygamy or enter into any kind of "conjugal union" (i.e. a common-law marriage) with more than one person at the same time. Intervenors will have as little as 3 weeks to respond with court applications and affidavits.


It is important that polyamorists who are interested in being married to more than one person, or are living with more than one person, make the court aware of their interests and the legal arguments that the law is unconstitutional, because it infringes their Canadian Charter rights of association, religion (i.e. Wiccan or Pagan), equality, and the life, liberty and security of the person. It is not appropriate for a law which criminalizes loving, committed, consensual relationships to remain on the books, even if it not presently being enforced. The more polyamorous interveners there are, the more strongly the court will hear this position.


PLEASE ENSURE THAT THIS EMAIL IS PLACED ASAP TO ALL OTHER CANADIAN POLYAMOROUS GROUPS AND LISTS TO WHICH YOU BELONG.


Who are we?


We are individual members of the Vancouver polyamory community and are active members or coordinators in Vanpoly (www.vanpoly.ca), who have joined together to coordinate an intervention by polyamorists so that the court can hear our stories and arguments. We have experience in organizing politically and legally. One of our members has offered to act as pro bono legal counsel and has successful experience in mounting constitutional challenges to Canada's criminal code. We are also liaising with other civil and legal rights groups who are also following the BC government closely in this matter.


What are the steps in the process?


First, and as soon as possible, we need to identify potential intervenors and get their stories. When the government asks the court about the legality of this legislation, we want to be ready to finalize the sworn statements of intervenors and apply to the court within the 3 week period. If our application to the court is accepted, we will then prepare legal arguments in support of the above position that it is not appropriate for a law which criminalizes loving, committed, consentual relationships to remain on the books. It is expected that this process will need to go very quickly.


Qualifications of an Intervenor

We are in immediate need of identifying as many potential intervenors as possible so that polyamory can be properly represented.

If you are a Canadian Resident:

1) currently living with multiple partners in a conjugal (marital or marital-like) relationships, or

2) have engaged in polyamorous relationships either in the past or currently AND have a desire to live with multiple partners in a conjugal (marital or marital-like) relationships in the future

then we ask you to email us.

While we are interested in hearing from ALL people who fit the above criteria, we are especially interested in having at least one female in a MFF (male-female-female) grouping.

What would it mean to be an intervenor?


1. You would need to give legal counsel some facts as to your polyamorous lifestyle which would be written up in a statement, which you will be asked to swear on oath is true. This statement would be filed in court. Your name and your address along with the statements in your affidavit would then be public. However, you would NOT need to name your partners.

2. You may find that your name and other information in your affidavit is in the news. You would NOT need to speak to media or answer their questions as you could refuse to respond to any media enquiries.

3. You would NOT need to incur court costs. You would need to pay for the affidavit to be sworn if you are in a city other than Vancouver. (If this is a concern, please advise and we will look for donations toward the cost.)

Who do I contact for more information or to offer to be an intervenor?


Please email Melly at ms.mellyn@gmail.com.

Thank you for your attention to this.