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Queer Ontario Denounces Court Decision on Criminal Code Section 293
Toronto - Queer Ontario decries the decision of the Supreme Court of British Columbia to uphold Section 293 of the Criminal Code of Canada. We call upon the Government of Canada to repeal Section 293 and hope this court decision is appealed to the Supreme Court of Canada. Section 293 is a law that unnecessarily criminalizes marriages or conjugal unions involving more than two people. The decision by British Columbia Chief Justice Robert Bauman found Section 293 to be constitutional because it supposedly protects women and children from the supposed harms of polygamy. And while this may sound commendable, the ruling reveals that he was more concerned with preventing the formal recognition of multi-partner relationships than protecting abused persons. For one, Bauman determined that section 293 only applies to multi-partner relationships that take the form of a marriage – without clearly defining what a “marriage” is – leaving unmarried and cohabiting common law partners free to live their lives without fear of prosecution [Paragraphs 1023 and 1037 of the ruling]. Similarly, Bauman ruled that the law applies to polyandry and same-sex polygamous relationships (despite their recognized harmlessness) because the government has an interest in the preservation of monogamous marriage, and the protection of individuals and society from the harms believed to be associated with polygamy [Paragraph 982]. “This creates a strange predicament,” notes Martin Otárola, Queer Ontario’s Secretary, “where individuals are free to form relationships with more than one partner, but are suddenly at risk of being charged with a criminal offence if they ever attempt to formalize their relationship. This begs the question: What is it about polyamorous relationships that make them perfectly acceptable under the law when they exist informally, yet so threatening once a request is made to have the rights, recognitions, and benefits afforded to married couples extended onto them? There is absolutely no logic behind this arbitrary distinction.” Indeed, Queer Ontario is disappointed that the BC Supreme Court ruling has given such uncritical weight to monogamous marriage, ultimately barring the possibility of extending marriage rights to polyamorous partners [Paragraphs 881-885, and 1042]. Queer Ontario has always held that the individual should be recognized as the basic social unit in a fair and democratic society, so that individuals are not required to get married, or to live with another person, to receive the rights, recognitions, and benefits currently afforded to married persons. Perhaps the most revealing aspect of Bauman’s ruling, however, was his failure to recognize that abuse and exploitation can occur within any relationship -- be it polygamous, monogamous, polyamorous, or familial. It does not make sense for the law, as it now stands, to criminalize polygamous marriages because of their supposed abuses while leaving monogamy and polyamory unchecked. Indeed, if the Chief Justice were truly interested in eradicating abusive dynamics in personal relationships, he would have struck down Section 293 and urged legislators to develop laws that would address abuses in all relationships.
Instead, he ruled that Section 293 would not apply to young people in polygamous marriages between the ages of 12 and 17 because they are often coerced into entering one, making no such concession for adults who may find themselves in a similar situation. As a result, all adults are criminalizable under this law, including those who are being abused. Again, we fail to understand the logic. “Social conservatism seems to have led the judge to some illogical conclusions,” notes Alana Boltwood, Chair of Queer Ontario’s Research & Education Committee. “People should be free to love – and marry – whomever they please. We support consensual, honest and responsible relationships between any number of people.” You can read Queer Ontario’s policy statement on non-monogamous relationships at http://queerontario.org/2011/11/24/non-monogamy-policy. Queer Ontario would like to thank the Canadian Polyamory Advocacy Association for their contributions to the British Columbia case. - 30 Contacts: Alana Boltwood Chair, Queer Ontario Research & Education Committee Martin Otárola Secretary, Queer Ontario firstname.lastname@example.org References: BC Supreme Court decision: http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1588.htm Queer Ontario policy on non-monogamy: http://queerontario.org/2011/11/24/non-monogamy-policy Canadian Polyamory Advocacy Association reaction: http://polyadvocacy.ca/cpaa-reacts-to-bc-supreme-court-decision Ottawa Citizen commentary: http://www.ottawacitizen.com/opinion/columnists/need+polygamy/5756806/story.html Background about the law and court case from CPAA: http://polyadvocacy.ca/faq-293-reference