Subtitle: One of the things that’s wrong with Reference re: Section 293 of the Criminal Code of Canada
In 2009, after two failed prosecutions of leaders of British Columbia’s enclave of fundamentalist Mormons – on charges of child trafficking, transporting American girls to Canada in order to marry them to much older men – the Lieutenant Governor of B.C. asked the courts whether those leaders, and other adult men in the community, might be prosecuted simply for polygamy.
Section 293 of the Canadian Criminal Code provides for up to five years imprisonment for the parties to a polygamous relationship and for anyone who participates in or attends at the celebration of such a relationship. It has been on the books since 1890 and successfully enforced twice, in 1899 and in 1906.
Between its poor record and speculation at various levels that prohibiting polygamy might violate Canadian charter rights, such as freedom of religion, freedom of association, freedom of expression, and liberty and security of the person, asking the Court for a ruling on whether s293 is consistent with the Canadian Charter of Rights and Freedoms seems prudent.
The case caught the attention of Canada’s largely secular and dispersed polyamorous community. While the Canadian Polyamory Advocacy Association takes great pains to distinguish itself from the community in Bountiful, promoting equality and progressive values, they have long been critical of s293 for stigmatizing, and potentially criminalizing, polyamorous life choices. They intervened in the case and submitted extensive arguments against the constitutionality of s293.
For reasons explained at great length in his decision, and worthy of a critique all their own, B.C. Supreme Court Chief Justice Bauman found s293 constitutionally valid. Polygamy continues to be a crime.
However, many polyamorists found solace from his statement that “the offence is not directed at multi-party, unmarried relationships or common law cohabitation” . That solace is (or ought to be) accompanied by dismay, because he continues: “but is directed at both polygyny and polyandry. It is also directed at multi-party same sex marriages.”
OK: multi-party unmarried relationships and multi-party common law relationships
Not OK: multi-party marriages, regardless of the genders of the individuals involved.
Problem: How do you tell the difference between a criminal multi-party marriage and a legal unmarried multi-party relationship when there is no such thing as multi-party marriage under Canadian law?
Justice Bauman’s ruling assumes that there is such a thing as “marriage” that exists independently of law and into which people can enter without any legal sanction or recognition.
Since participating in a “marriage” could make polyamorous families into criminals, it would seem important to have clear guidelines for how to achieve this apparently platonic, yet legally illegitimate, state of “marriage” – and how to refrain from achieving it in order to avoid violating the law. Justice Bauman excuses himself from that task: “I am not definitively defining “marriage”; it is not my task on this reference to do so.” .
Justice Bauman offers no elaboration beyond the text of s293 itself, which states: “Everyone who…celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship” is criminally liable for polygamy. According to s293, “sanction” by means of “rite, ceremony, contract, or consent,” is what separates an unmarried from a married relationship.
Justice Bauman concedes that it seems absurd that everything turns on what might be single moment of “sanctioning,” but he considers it an appropriate level of absurdity for the Canadian legislature. He compares it to setting the blood alcohol limit for driving at .08 instead of .07; the distinction is apparently arbitrary, but “Parliament can draw such bright lines” [1039-1040]. Blood alcohol level is an objectively measurable thing; what is the bright line between sanctioned and not sanctioned? Justice Bauman only offers us some synonyms: approve, encourage, and expressly permit .
The implication is that unselfconsciously drifting into a polyamorous relationship is permitted, but holding a commitment ceremony (rite/ceremony) or signing a cohabitation contract (contract) would create a “marriage” and make the “spouses,” guests, officiants, and lawyers into criminals.
What if a polyamorous triad was willing to forego a public rite, and whatever emotional meaning it holds? And willing to forego a cohabitation contract, and whatever legal protections it might provide?
That might be all right as long as they do not actually express “consent” to their own relationship. Sanction by consent implies that even a private verbal expression of commitment to a multi-person relationship constitutes a “marriage” and subjects the “spouses” to criminal liability.
Thankfully, neither B.C. nor any other province has demonstrated or expressed any interest in prosecuting polyamorous spouses so people probably do not need to worry about promising to love and care for their polyamorous partners and accidentally ending up “married.” Meanwhile, the B.C. Supreme Court is a trial level court, and the ruling may well be appealed to the B.C. Court of Appeals and even the Supreme Court of Canada, who will hopefully make some more sense of it.
As long as the likelihood for imminent harm seems remote, I’ll admit to wishing that Justice Bauman had provided us some information about platonic polyamorous “divorce,” and how a repentant polyamorous “spouse” could end their “marriage” and be a good law abiding Canadian again.
For enjoyable incisive commentary, I highly recommend Tabatha Southey’s article in the Globe and Mail: “We have as many double standards on polygamy as Solomon had wives.”