Mormon Polygamy on Trial : Day 4 of the BC Charter case

Notes from (Day 4)

FLDS (Fundamentalist Church of Jesus Christ of Latter Day Saints) attorney

Section 293 requires the crown to prove that a person lives with 2 or more people in a relationship that is binding on the person's conscience for some period of time.

Referred to a legal precedent of a 1891 test case on section 293 from Quebec, where 2 people were living with people who there were not married to. In the Judge's findings, he stated that the law (section 293) only applied to “Mormons and their like”, The object was taken from the Edmunds act and was not designed to suppress immorality. It was only designed to suppress Mormons. There must be some form of ceremony binding on the people involved. It does not prohibit behaviour of living with more than one person, or having sex with more than one person or having children with more than one person. The Section strikes at the motivation for engaging in the behavior - a commitment binding on the conscience.

Highlights the polygamy definition given by the AG BC because BC is the enforcer of the law. AG previously said “Section 293 prohibits marriages or marriage like relationships that include a ceremony performed by someone purported to have authority having power or influence over the parties that is binding on the conscience.” AG now says “Polygynous marriage performed by someone purported to have authority binding on the conscience of the individuals. The violation of the law cannot depend on the action of a third party. It must be a voluntary act of the participants only.

293 is a crime of status. It prohibits people from participating in an act that is otherwise lawful, only because it is performed by more than 2 persons.

The fundamentalist LDS community is following a form of mormonism that originated with Joseph Smith and has been unpopular and persecuted since the beginning. They believe that they are led by a prophet who receives revelations from God. They recognize that if they are forced to change their beliefs and actions to those of the greater society then they will lose their religion. The FLDS does not seek to justify the abuse that people have suffered in the FLDS community and believe that those abuses should be investigated and prosecuted - if necessary. Refutes the idea of some experts that suggest the people are “somehow brain damaged” and incapable of giving consent.

The FLDS (not including Blackmore’s followers) has requested a headcount to disclose that the community is comprised of 550 people 183 are over 18, all but 68 are married or previously married. 115 are married. 65 are monogamous and 50 are polygamous. 16 affidavits are presented to show social harm. Most are from Americans.

FLDS will provide positive affidavits from people living in Bountiful. Some of the married witnesses were married at 16 or 17. The church now holds that marriage should not occur before 18. Will also provide a male witness that has willingly left the community and is happily adjusted and keeps in touch with this family (who is that????). Problems arise in the community but they are afraid to access help because they are afraid of jail or that the family will be ripped apart. The anti- polygamy law forces them to separate from society. If polygamy were de-criminalized (not condoned or approved), it may ameliourate the harms caused by polygamy because they would be more able to find help for problems that occur in Bountiful.

Canadian Polyamory Association (CPAA)

CPAA will hold comments to secondary targets of the law. The concept of reading down allows for a surgical deployment of the law. The AG has decided not to do that - rather planning to use a blanket approach. CPAA holds this blanket approach is contrary to the constitution and goes against the deepest beliefs of Canadians. Supports the comments of the Amicus and will not repeat them.

Patriarchal beliefs suggest that only men have the right to have multiple partners. This is also a broader problem because men have all the power in the entire community. Because of this obvious trait, the media and others focus on this old-fashioned power imbalance. However, the BC AG has determined to focus their attention to a much broader community - including the polyamorists.

The difference between the 2 communities: In Polyamory, men and women have equal rights - including full gender equality .2 . No religious tradition - 3. Polyamory occurs outside closed communities. Polyamory is not attracting negative social stigma.

Surprized when the AG did not take a surgical approach.

BC AG initially followed an interesting idea that the law should only apply to the known historical forms of polygamy. Since homosexual pairings were not known at that time (1890s), then the law does not apply to them. Also multi-men for one women was not widely known, the law could not hold to them. All polygamy groups at that time had a long religious tradition.

CPAA does not understand why the law does not distinguish on this basis.

Currently, with the AG position, if there is a household in Vancouver where all 3 partners are lawyers - one man and two women - they are breaking the law. However, if there is a house next door with one woman and two men they are not breaking the law.

If another household has 3 lesbian members and they have a party to celebrate their relationship in some public way, then according to the AG of Canada, they are criminal. If there is another gay multi-partner family that does not have a party, they are not criminals. This is deeply disturbing to the polyamorous community.

Section 293 has deeply draconian elements. It applies to the relationship itself. It can break up loving families and is as deep an intrusion into the most personal elements of an individual’s life as can be imagined.

All the evidence of harm comes from a deeply patriarchal family structure. There is no evidence that other forms are harmful. Some contention of social harm states that men and women are genetically different. If men are allowed freedom in their sexual choices then we would naturally evolve to a patriarchal polygynous society. There is no proof for these conjectures and these same sort of evolutionary arguments are used when there is no real argument. They have also has been used to disenfranchise and denigrate women.

The crown has not done any surveys or interviewed any individuals who have been harmed by polyamory. CPAA believes if the AG had done the research, then it would have refuted the claims on which they are basing their case.

Polyamory is based upon a desire to experiment with new forms of relationships. In that experiment, they are exploring human emotions like jealousy and finding joys in their partners having other relationships.

Section 293 criminalizes individuals and implies a risk that the State can intrude and break-up families. AG argues that it must use a blanket approach because it cannot distinguish between patriarchal and polyamorous relationships.

Can be distinguished with simple questions:
Do you believe that men and women have the same rights and freedoms?
Are your beliefs based upon long religious established traditions?

Currently, if a man and 2 women show up at the border and give the same address, are they breaking the law? Now they would have to ask if the people are room mates or whether they are having sex.

The attempts of the AG to use a blanket approach against polygamy violates fundamental Canadian values about diversity, ability to socially experiment and the freedom to live the way we choose in our own households.