The British Columbia Supreme Court will be some hearing testimony on the criminalization of plural unions — an extremely important case with global ramifications. As has been my practice in past cases, I wanted to confirm my involvement in the case as a court-appointed expert on the legality of such criminal laws. Weeks ago, I was retained to submit written testimony on the right of consenting adults to plural unions under United States and international law.
My roughly 90 page affidavit has been filed with the court and I am awaiting word on whether I will be called as a live witness by B.C. Attorney-General Mike de Jong. I have been tentatively included in the list of such witnesses, but it is common to have witnesses dropped before such proceedings. A large number of polygamists and polyamorists are expected to testify.
A total of 12 groups has been granted intervenor status in the case.
Here is the caption of the case for anyone who wants to track the case:
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF:
THE CONSTITUTIONAL QUESTION ACT, R.S.B.C. 1986, c. 68
AND IN THE MATTER OF:
THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
AND IN THE MATTER OF:
A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22, 2009 CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THE CRIMINAL CODE OF CANADA, R.S.C. 1985, c. C-46
Jonathan Turley
The Supreme Court of Canada upheld a PRO SE tort claim against the Bar Association of Quebec so they seem good to me. Another S.C.C. decision I saw said that jurisdiction always has to be somewhere.
Finney v. Barreau du QuƩbec, [2004] 2 S.C.R. 17, 2004 SCC 36
Tony C raises an interesting question. Some employers now provide medical coverage for an employee’s “significant other” in same sex relationships.
How much in medical benefits should an employer furnish if the employee has multiple “spouses” and accompanying children?
How much time off for maternity/paternity leave?
How large an onsite child-care center?
What’s the difference between single partners in successive single marriages and multiple partners in a single marriage?
Polygamy is practiced more widely worldwide than monogamy, though laws probably don’t become involved as often.
For anyone interested, the case number is S-097767, but there are several $6 fees associated with opening the docket and printing anything.
Professor,
Is your filing part of the public record of the case? If so, can you share it with us here?
@gingerbaker:
The law already has to deal with similar situations in non-marriage circumstances. A friend of mine was a partner in a Yoga studio, one of 3 partners who set up the business and had co-ownership of it. The partners found that after a few years that they could no longer work together, and also could not agree on an equitable agreement for the one partner who was leaving to be bought out. That’s exactly equivalent to a divorce proceeding. If the law can work out this situation (and it did, and afterwards the party which ‘lost’ the case now agrees that the Judge came up with a fair settlement) then it can work out a divorce between 3 spouses.
canadian plural marriages. just think of the tv sitcom possabilities.
A nit-pick — there’s no such thing as the Canadian Supreme Court in British Columbia. There’s the British Columbia Supreme Court, then the BC Court of Appeal, and finally, some 2,500 miles away in Ottawa, the Supreme Court of Canada.
There will be a lot of drama and a lot of arguing in this case. I must say that it is all rather laughable, because the one thing that won’t get argued is whether the language of Canada’s polygamy law should be changed. The law basically says that, if you are accused of “polygamy”, you are guilty, and no witnesses are needed, and no evidence is required to show whether you engaged in sex or even intended to.
In a Machiavellian way, I almost wish that the stupid law would get upheld so that it can be properly tested in a real case.
Ontario just legalized prostitution. Canada’s polyg’s don’t get more than one marriage license, so most polygamy is just adultery or fornication with a religious flavor. Just as in the U.S., it is not the ACTIVITY which is being criminalized – it is the RELIGIOUS THINKING.
Anyone who supports these absurd laws must still think the Emperor is clothed.
@Gingerbaker: We already are forced to deal with custody issues with divorce, this shouldn’t be any different. The child still has only two biological parents; and stays with one or the other. One will be with the group, the other will be leaving it.
I don’t see it as being much different to unravel than custody battles with children that are half-siblings because of a series of serial marriages by their parents.
An advantage to legalized polygamy (and gay marriage) (over effective polygamy or gay marriage without legally recognized marriages) might be that the other parties have some legal standing in the custody of a child, similar to adoptive parenthood, and a right to be considered by the court, in terms of visitation or even custody when the biological parent would be incapable, impoverished, imprisoned or otherwise unfit to retain custody.
“Polygamy is such a non-issueā¦ If thereās consent, why should there be any legal issue. ”
I’m guessing one of the issues may have to do with children and divorce in polygamous marriage, and if problems in that regard – if any – outweigh societal benefit of polygamy.
We have intertwining discussions of prosecution procedure and of polygamy. Anon nurse and I see a procedural due process right to a disinterested prosecutor.
So if we assume that the first prosecutor was disinterested, what was the governments’ stated motivation or need in requesting a special prosecutor?
Where is the link to the government’s motion for a special prosecutor ?
Blouise and Elaine: After going the rounds twice on polygamy, I will also be absent. I was tempted to say it is illegal in France. I just said it but that’s all.
Blouise,
I think I may absent myself from this discussion on polygamy.
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Polygamy is such a non-issue… If there’s consent, why should there be any legal issue.
If an issue doesn’t need legislation, you can bet your pinky behind that the gov’t will put some in place, and vice versa.
Same with economics… If an issue doesn’t need gov’t intervention, you can bet your mommy that they will, and vice versa.
I don’t think JT’s colleagues could make the law any less comprehensive if they tried..
The point of absolute irrationality is fast approaching.
I am confused and will have to wait for further developments and/or comments from posters to get a better understanding of the criminalization of plural unions.
I look forward to this discussion.
Kay, I don’t completely understand your comment — to whom are your questions posed?
I believe, to use your words, that one has “a right to a disinterested prosecutor”…
I pulled the excerpt from the article, because the issue of “prosecutor shopping” had been raised by B.C. Supreme Court Justice Sunni Stromberg-Stein…
It is hard for me to understand what interest a government can have in such cases IF, like the USA and Canada, they freely permit cohabitation, sharing of household finances, any sexual relationship desired including procreation, contracts for guardianship and inheritance and in essence every major benefit of marriage except for legal “recognition” and some rights surrounding employment (mourning leave, emergency leave, etc). (I suppose I should mention immigration rights of the married as well.)
The same goes for gay marriage. It seems to me these governments are enforcing a religious viewpoint, or carrying water for corporations that don’t want to provide benefits reserved for the legally married.
I don’t see what societal benefit is obtained by prohibiting such marriages (gay or polygamous), and I don’t think they should be banned. Marriage doesn’t keep families together, or prevent single parenthood, or prevent promiscuity among the young or cheating by spouses or anything else. (If there would even be a societal benefit in that; I am a social libertarian when it comes to people’s personal relationship choices).
So what you are saying is that when the rules of criminal procedure are violated the prosecution is ……? I thought that what happened is the court would say that the departures are never important to the outcome. Which doesn’t make sense because why would they write the rule to begin with if it wasn’t important.
So what you mean is that there is a right to have only one prosecutor, or a lead named prosecutor?
In the Vuitton opinion the S.C. discussed a right to a disinterested prosecutor.
http://supreme.justia.com/us/481/787/case.html
The following excerpt (from the canada.com link), highlights “prosecutor shopping” in the case:
B.C. Attorney-General Mike de Jong had asked the B.C. Supreme Court to rule on the legality of the law after the government’s prosecution of prominent polygamists James Oler and Winston Blackmore, leaders of the Bountiful Mormon community near Creston, was thrown out of court in September 2009.
B.C. Supreme Court Justice Sunni Stromberg-Stein stayed charges against the two men after finding former B.C. Attorney-General Wally Oppal went “prosecutor-shopping” by appointing a second special prosecutor in the case after the first one, Richard Peck, advised against laying charges. Peck had recommended, instead, that the government refer the anti-polygamy law to the B.C. Court of Appeal. .
I wish I was you. It must be great to be recognized as an expert in so many matters, to be able to appear in Congress, and to be treated with so much respect.