Polygamy as Prohibited by the Criminal Code of Canada

Update: jbash at the Canadian Polyamory Advocacy Association informs me “that the poly community *is* opposing
Section 293. The web site is at http://polyadvocacy.ca.”

____________________________________________________________________

Xtra published an excellent article in October of last year on Why Bountiful [that is, the 2 men in Bountiful BC charged with 22 counts of polygamy] Matters to the LGBT community.

“When it comes down to it, this debate is about freedom of choice. Blackmore and Oler may be practicing polygamy in unsavoury ways, but they remain part of the spectrum of nonmonogamy that informs so many queer relationships.

The dominant view — reinforced by Canada’s polygamy law — is that relationships are for two people to the exclusion of all others.”

It’s an older article, but is timely now, because of the recent news that Canada’s Green Party voted not to include a rethinking of Canada’s approach to polygamy in its platform.

And if you’re thinking, “she’s not going to defend polygamy, is she?” … well, yes.  Yes, I am.

What I will not defend are some of the practices we often think of when we think about polygamy, as practiced by some of its more notorious adherents: exploitation of women and children, coercion, misogyny… those are still indefensible.  They are not, however, intrinsically linked with and inseparable from any and all romantic relationships that involve more than two people.  They are separate issues — we must find a way to address exploitation and coercion based on the exploitation and coercion, and not by criminalizing something that also affects responsible and consenting adults.

Besides, Section 293 of the Criminal Code of Canada states:

“Everyone who practices or enters into or in any manner agrees or consents to practise or enter into 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, or 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.”

In case you missed the implication of that, Canada currently bans not only polygamy, but also some (or possibly all?) forms of polyamory and ethical non-monogamy.  It’s even conceivable that this could be twisted to criminalize infidelity, provided there was some kind of sharing of property or something that could be construed as a commitment / contract (adultery is otherwise exempted).  This statute is not typically enforced with regard to non-monogamy, although that is not always a guarantee.

In the evidence portion, it states that no proof of marriage ceremony is needed, nor does one have to proof that sexual intercourse ever happened or was even intended to happen. It’s a bit twisted and heavy-handed, but was keyed this way because it was written to forbid Mormons entry into the country during that faith’s formative years — and hence, it also becomes an issue of religious discrimination.  Talk about strange bedfellows….

Canada’s polyamorous … er, couples?  (obviously, poly culture language still needs some development in order to adequately communicate all the possibilities) … haven’t really tried to have this changed, to date, largely because they often don’t know that it already criminalizes them, and because they usually don’t endorse the things that we commonly think of when we think of polygamy and don’t want to be drawn into a defense of that behaviour.  But as I said, poly relationships are not inherently of themselves causal of abuses and exploitation of women and children.  If that baggage can be completely separated from the equation for a moment, how can we say that healthy, responsible and equal relationships in which there is mutual dependence and support should not have some legal and financial recognition?

This is an issue of freedom of choice, an issue of the ongoing insistence that government should legislate one group of peoples’ values on everyone else, an issue of sexual minorities once again being marginalized and legislated out of perceptive existence and into a closet, an issue of an entire minority being tarnished by unfounded assumptions and connections being made based on the poor behaviour of an extreme representation of that minority.

Something to think about.

(offered to sexgenderbody)

    • Leslea
    • August 31st, 2010

    Very well put. It’s high time that consenting adults in relationships with other consenting adults, SHOULD be not only recognized, but 100% legal. It doesn’t matter if it’s 2 men, 2 women, or any combination that involves more than 2 people… Triads, quads, quints or other combinations, it’s all good & so long as it’s not about abuse, but consensual relationships, they should ALL be respected.

    A smart man once said “The state has NO place in the bedrooms of the nation”. It counts not just for straight, gay, bi or lesbian relationships. It counts for ALL consenting adult relationships.

    Leslea

      • dentedbluemercedes
      • August 31st, 2010

      Hey, don’t steal my thunder. I plan to riff on that soon. :)

    • Oddly enough, a stupider man, Real Caouette, debating that smart man, said that decriminalizing homosexuality would lead to legal same-sex marriages. So… um… food for thought? I dunno, but I always found it the most interesting CBC tidbit: Same Sex Marriage predicted by Socred, 35 years in advance.

    • dentedbluemercedes
    • August 31st, 2010

    Post updated with info about the Canadian Polyamory Advocacy Association at the top of the article.

    • Janet
    • August 31st, 2010

    Unfortunately, one doesn’t need to consent to polygamy in Saskatchewan to actually “become the spouse pf a person who has a spouse”. This really screws up marital property rights.

      • dentedbluemercedes
      • August 31st, 2010

      Yes, Saskatchewan has an unusual precedent on file which I haven’t looked into yet, other than to know that it’s there. I’d welcome any further insight on that.

    • Janet
    • September 1st, 2010

    They utilize s.51 of their Family Property Act (formerly Married Persons Act) which states what happens when a court declares a person to “become the spouse of a person who has a spouse). It was supposed to be written “had a spouse”.
    The original act had a clause that stipulated what happens when a “previous” divorced spouse has rights that supercede the subsequent marriage spousal rights. However, Saskatchewan interpreted their wording to allow polygamy. It is a federal crime of polygamy to use “authority” (as in a FLDS bishop) such as judicial authority to “sanction” multiple same time conjugal relationships ( meaning of a “marital” type nature i.e civil or common law marriage). However, no one has charged Saskatchewan justices for sanctioning with judicial authority multiple sametime conjugal relationships.

      • dentedbluemercedes
      • September 2nd, 2010

      Thanks!

  1. The amount of individual in triad or quad relationships is significant enough that I would hope that rights should be taken up as an issue. Oddly, we often apply the same assumptive to poly marriages/unions that is oft applied to gay/lesbian couples (that it is sex, sex, sex! When, for example, a UK organization is made up of gay conservative/evangelical christians who feel due to oath to God to remain in their ‘straight marraige’ while being with their new partner, platonically – which creates a quad usually, where no sex is involved at all.

    The documentary Saving Grace, shows a Lesbian Quad in order to help bring up Grace, made up of ex-partners.

    But, in Canada, the only western country lacking any disability act, who was the last western country to allow voting rights due to ethnicity (to Ukranians, at last in the late 50’s), who put people in jail for BEING gay, simply breathing and saying they had sexual same sex attraction, in the early seventies, who sterilized youths and adults against their will based on ‘Eugenics Boards until the LATE 70’s as a few examples, the idea of defending individual or even minority rights has not been high, the whole ‘peace, order and good government’ means we, as Canada, are always ready to throw a minority out the back or under the wheels for the political ease of a region or the country as a whole.

    Defend yes! Bring the idea that if the individual is not expendable to Canada, double yes!

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