December 5, 2011 by Lain
On Wednesday, Nov. 23, B.C. Supreme Court Chief Justice Robert Bauman ruled to uphold Canada’s existing Polygamy Law. Section 293 of Canada’s Criminal Code, the section of Canadian law in question, adopted in 1890, was, in it’s original form, intended for Mormons moving in to Canada from the U.S.
It seems that Canada’s first Prime Minister, Sir John A. MacDonald, wanted religious diversity in the newly opened west, but wanted no part of the Mormon polygamous lifestyle, and in the original wording, this section was directly aimed at Mormons.
Today, the law simply refers to “any form of polygamy”…
293. (1) Every one who
(a) practises 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.
“I have concluded that this case is essentially about harm,”…“More specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.”
Sam Wagar, of The Congregationalist Wiccan Association of British Columbia, and the only Wiccan Priest to file an affidavit in this case, clearly disagreed with the ruling;
“The judge made the error of equating the norm of monogamy with all good things and the practice of polygamy with all bad things.”
Court documents filed on behalf of the CWABC by Mr. Wagar make clear the position that section 293 of the criminal code restricts religious freedom;
 Mr. Wagar deposes that since he is prohibited from performing a marriage ceremony that involves more than two adults, he is unable to act freely in accordance with his religious beliefs when approached by people involved in polygamous or polyamorous relationships.
I spoke to Mr. Wagar about his reaction to this decision;
“First, from the legal POV: the charter arguments were sound, that polygamy is allowed or encouraged as an article of faith in several faith traditions and that restricting it is an infringement on religious liberty…a core value of society must be to encourage lasting and honourable committed relationships between adults…”
“I agree that Patriarchal polygyny as practiced by such as the FLDS is harmful to women and children. However, that is not the only form that multiple adult families take. This is a point which the judge acknowledges and then chooses to ignore in favour of a bias for monogomy.”
“All acts of love and pleasure are acts of praise to the Goddess. This foundation statement of belief in Wicca means nothing if it cannot be acted upon”, said Wagar.
“We grow as human beings and survive as a society by making committed relationships with others that are not based on immediate gratification but on love and honour. The number of partners is not important, the quality of the commitment is.”
“I anticipate it being overturned on appeal.”
The group Stop Polygamy in Canada welcomed the decision;
“Chief Justice Bauman has sent a message around the world that Canada’s laws protecting the equality rights of women are to be protected. This decision also honours Canada’s international agreements protecting the rights of women and children. Canada’s doors are closed to polygamists and the practice of polygamy within our borders is still a crime.”
The Canadian Polyamory Advocacy Association points out that the decision applies specifically to those “Poly” relationships which officially sanction their bonds with public/religious ceremony;
“Polyamorists are relieved they can be in loving egalitarian conjugal relationships without criminal sanction,” said CPAA legal counsel, John Ince, “Common law relationships are clearly not prohibited. Polyamorists who are dealing with immigration or family custody issues for instance now need no longer worry about being considered to be criminals”.
Over at The Wild Hunt, Jason discusses the implications of this decision for Polyamorous Pagans;
“Considering how many Canadian Pagan polyamorous families have had public marriage/handfasting ceremonies this interpretation of the law places them on the same legal footing as a polygamous Mormon (or Muslim) household. This, in essence, forces consensual multi-partner arrangements to stay in the closet, and avoid anything that might be interpreted by a “sanctioning” event within their community.”
We want to know how you feel about this. In this case, is society justified in limiting religious freedom to ensure the safety of the women and children involved in places like Bountiful, B.C., an FLDS (Fundamentalist Mormon) stronghold, which practices Patriarchal polygyny?