Polygamy as Prohibited by the Criminal Code of Canada

Mercedes Allen's picture

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.

(crossposted to DentedBlueMercedes)

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Mercedes Allen's picture

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."

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