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Saturday, September 18, 2010

O Canada!


You have been following the legal battle shaping up in Canada regarding Polyamory, Polygamy, and Section 293 of the Criminal Code of Canada right?

No? Maybe you should be.

Section 293 says:
293.

1.Every one who
a.practices or enters into or in any manner agrees or consents to practise or enter into
i.any form of polygamy, or
ii.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

b.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.

Evidence in case of polygamy

2.Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.

Originally the intent and enforcement of the law was an apparent attempt to force First Nations Mormons away from polygamy which had questionable results at best. In the late 1800's there was one conviction under the law which hasn't been enforced since the 1940's. Recently however the Crown attempted to prosecute two men from Bountiful, B.C. in a case that was eventually dismissed. Prosecution was attempted by a third prosecutor after two others refused to bring charges due to constitutional problems with Section 293 and the court ruled the third prosecutor couldn't override the first two. Essentially the Crown had gone prosecutor shopping and the move backfired. The government then initiated the current reference case to clarify Section 293 and any constitutional issues it may contain.

The CPAA has intervened over concerns that if the law is upheld constitutionally it is broad enough to be used against polyamorists. Although the law is currently understood to exclude polyamory that could change at any time. The CPAA hopes to have the law better defined to the point it specifically excludes polyamory or specifically includes defined behavior or polygamy. Included is the concern that because the law could be interpreted to criminalize polyamory that polyamorists as a group have been unfairly stigmatized by the law unintentionally.

Why should you care? Because the case will likely put Canada further down the unexplored road of defining marriage than the U.S. Often Canadian and U.S. law are tied closely, or are even used as precedents.

Not to mention as Section 293 is currently written. . .
-it is possible any conjugal relationship could be punishable under the law.
-the law could be applied to someone dating, and having sex with, multiple partners but not in any formal relationship with any of them. Conjugal is typically understood to mean "sex".
-anyone attending a ritual, ceremony, or handfasting, regardless of legal recognition of the event could be prosecuted under the law.
-anyone who knows of a couple or group existing in a committed, but not legally sanctioned, relationship who doesn't report the relationship to authorities could be charged under the law.
-swinging could be illegal.
-threesomes could be illegal.
-Cheat on your girlfriend, she finds out, she calls the cops. 5 yrs in prison.

By the way, lack of sexual intercourse or abuse don't excuse guilt under the law. Furthermore, how you got into the relationship doesn't matter either.

Are you interested in the case yet? What are your thoughts? Does it matter, not matter, or have I been speaking a new alien language?

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