Polyamory and a Canadian Polygamy Ruling

Canada's Criminal Code has long carried an offence aimed at polygamy and similar unions. Prosecutions were rare, and many lawyers doubted that the provision could survive a challenge under the Charter. To settle the matter, the British Columbia government referred the question to its Supreme Court, a procedure in which a court answers a legal question without a particular accused person before it.

Soon after the judgment was issued, a representative of a polyamory advocacy group published an open letter with a personal reading of what it meant for non-monogamous Canadians. This article describes the ruling and that reading in general terms. It is background information, not legal guidance, and courts or legislatures may treat the subject differently from one period to the next.

What the offence covers

Section 293 makes it a crime to practise or enter into polygamy, or any kind of conjugal union with more than one person at the same time. It applies whether or not the arrangement has legal recognition or a ceremony behind it.

The judge who heard the reference found that the provision limits Charter freedoms but is justified by the harms that the evidence tied to polygamous marriage, including harms to women, to children and to the wider community.

A narrower reading of the crime

According to the letter, the judge did not read the offence as reaching every non-monogamous relationship. He read it as aimed at unions that are both marriages and institutionalized, so that its purpose is to protect the institution of monogamous marriage.

Between those two ideas, institutionalization carried most of the weight. The judgment looked at three examples: two-person marriage as it exists in Canadian law, the plural marriages of a fundamentalist religious sect, and plural marriage traditions found in some other religious communities. The features of an institution drawn from the evidence were a community role, approval by an authority, some form of registration, a public ceremony, terms that the couple cannot rewrite alone, and an ending that needs a public step or outside parties. Legal recognition of same-sex marriage was cited as proof that new practices can build an institution.

One advocate's reading for polyamorous people

The author wrote as an individual, not for his organization. He thought the ruling left room for nearly everything most polyamorous people wanted to do.

His central point was that polyamorous communities in Canada have no marriage institution of the kind described. Their usual values, consent, honesty, equality and personal autonomy, apply to relationships generally and sit uneasily with fixed rules about entering and leaving a union. In his view, the ruling left most polyamorous arrangements outside the offence, because they lack a community-wide structure of that kind.

Limits of that view

The letter itself described its contents as personal thoughts rather than a legal opinion. Criminal law depends on how courts apply a provision to particular facts, and appeals or later cases can shift the picture.

The ruling also kept the offence available against polygamous sects, and public debate over plural relationships, family law and social acceptance has carried on.