British Columbia's Supreme Court chief justice has reserved his decision on a request by a Canadian polyamory group for the government to declare whether it will treat polyamory as criminal activity under the polygamy statute. Persons convicted of polygamy face up to five years in prison.
[Note: the British Columbia Supreme Court is a trial-level court.]
The CPAA brought forward the motion as part of a court reference to examine the constitutional validity of Section 293 of the Criminal Code of Canada. Section 293 bans polygamy.
CPAA lawyer John Ince said that polygamous relationships are based on a patriarchal system, while polyamorous ones are based on equality within a group of males and females. "We clearly fall outside the definition of the offence. If there are other elements, please specify," Ince said.
The constitutional reference arises from the failed polygamy prosecution of two men from the BC community of Bountiful. Winston Blackmore and James Oler are members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) in which polygamy is practised.
They were arrested in January 2009 and charged under Section 293. A BC Supreme Court judge agreed last year with the men's lawyers that then-attorney general Wally Oppal had gone "prosecutor shopping" in order to lay charges.
Blackmore, who was not in court on Sept 8, has maintained the outcome of the reference will determine his constitutional rights, in this case, freedom of religion and his faith's belief in marriages with multiple wives.
As part of Ince's submissions to the court, he included a survey of 188 people in polyamorous households. The total number of women was 167, while there were 158 men and 40 self-identified as other. In comments, the latter were explained as gender fluid, transsexual, transperson, trans-identified, androgynous, intersex or gender queer.