“A Beautiful Mess; A Splendid Adventure” Love, Marriage, and Polyamory, after Blackmore and RE C.C.:

This week, a Canadian criminal court rendered our country’s first sentences in relation to polygamy convictions in more than a century.[i] A few weeks earlier, a Canadian family court legally recognized three unmarried adults in a polyamorous relationship as legal parents of a child. This ironic confluence of events speaks to a need for law reform, or at least careful study of family law across the country, in considering whether to continue to criminally prohibit polygamy.

On June 26, 2018, Winston Blackmore and James Oler were sentenced to house arrest and probation in relation to the findings of guilt that had been rendered in R. v Blackmore[ii], and convictions entered after the accuseds' applications for stays of proceedings were dismissed [iii] Blackmore, who has entered into a form of marriage with 24 women at once, was sentenced to six months house arrest in relation to his conviction. Oler, who had engaged in ceremonies purporting to marry him to, and then lived with, five women, received a sentence of three months house arrest. In convicting and sentencing Blackmore and Oler, the Court referenced and applied the decision rendered about the constitutionality of s. 293, The provision was previously upheld in a 2011 decision of Justice Robert Bauman in British Columbia’s Constitutional Reference Re: Polygamy.[iii] In that case, Justice Bauman concluded in very simple terms that “there is no such thing as good polygamy.”

As I wrote at the time of the convictions,[iv] there can be little doubt that guilty verdicts, and the sentences, rendered against these breakaway FLDS Mormon polygamists are a correct application of the current law, laid out in s. 293 of the Criminal Code of Canada.

The language of s. 293 gives the state sweeping powers against people living in polyamorous relationships, but only when they enter into a form of marriage, not when they live together as unmarried family members. The criminal law carries the potential to criminalize women as well as men. Polygamy is a criminal offence in Canada, punishable by incarceration for up to five years. Section 293 of the Criminal Code of Canada[v] defines polygamy as a marriage between more than two people, as follows:

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.

The Reference only establishes that the criminal prohibition of polygamy is not unconstitutional. It does not tell us anything about whether this legislative provision is wise. Now that the cases of Blackmore and Oler have concluded, what is left for Canada is a more important question: not whether that law can continue to exist as it does, but whether, as a democratic society, we think the law should be changed.

Because I research and practice in the fields of both criminal and family law, I do think the law on polygamy should change. I am certainly not alone in this view. The growing numbers of clients in polyamorous relationships encountered by lawyers who practice family law matter, as do their children, to any discussion about when consensual conjugal relations between adults should be criminalized.

The Reference decision accepted an assumption that, in contrast, to polygamy, which is understood to be bad, monogamy is good. I have found neither of these generalizations supportable in my experience of practicing family law. Rather, I would tend to agree with this paraphrased quote from motivational guru Steve Maraboli: “love is delightfully chaotic: a beautiful mess, a splendid adventure.”[vi] As is well known to family lawyers, families are complex and peoples’ lives are complicated. Many people do not live in long-term, monogamous relationships. Polyamory, which is a long-term conjugal relationship between more than two people, outside of marriage, is not so unusual.

A 2017 report from the Canadian Research Institute for Law and the Family[vii], details the legal distinction between relationships that are polyamorous and marriages that are bigamous and polygamous, as well as looking closely at how common polyamory is. This report indicates that consensual, non-marital, polyamorous relationships proliferate in Canada, and they are not limited to the context of breakaway FLDS Mormons in Bountiful, B.C. They are also not limited to the paradigm of one man and several women (polygyny) but also extend to one woman and several men (polyandry). They can be bohemian and free-wheeling and they can be based in views that are religious or fundamentalist.

While our criminal law around polygamy remains frozen in its form as drafted in the nineteenth century, family forms are fluid, and have changed a great deal. Even family laws have shifted tremendously. Increasingly, polyamorous relationships are accommodated by the domestic relations legislation of Canada’s common law provinces.

As noted, it seems discordant that in the same year in which Oler and Blackmore received the first polygamy sentences rendered in a century, in C.C. (Re)[viii], a Court in Newfoundland legally recognized all members in a polyamorous partnership of three people (two men and one woman) as legal parents of a child. Additionally, in the family law context, persons who entered into plural marriages in other jurisdictions, where they were legal, can receive some protection and benefit from the family law.

As Gillian Calder and Lori Beaman have argued[ix], the grand assumptions about monogamous marriage being ennobling that inspired the reasoning of the Reference are unduly idealistic. Rather than being enthused by Hollywood-style romantic visions of monogamy when we consider whether to continue our current criminalization of polygamy, Canadians would be wiser to learn from, and respond to, the messy realities of monogamy, polyamory and families’ lives, as revealed by the CRILF report, as well as emerging jurisprudence relating to family law.

References:

[i] See e.g. CBC News, “B.C. polygamists Winston Blackmore and James Oler sentenced to house arrest” (26 June 2018)

[ii] R. v. Blackmore 2017 BCSC 1288

[iii] R. v. Blackmore, 2018 BCSC 367

[iv] Constitutional Reference RE: Polygamy 2011 BCSC 1588

[v] Bromwich, Rebecca, “Consider research when it comes to polyamory,” The Law Times (18 September 2017).

[vi] R.S.C., 1985, c. C-46

[vii] To find more quotes like this one, check out Steve Maraboli’s website,at http://www.stevemaraboli.net

[viii] Polyamory in Canada: Research on an Emerging Family Structure, 2017 CanLIIDocs 272

[ix] 2018 NLSC 71

[x] Calder, Gillian and Beaman, Lori, Polygamy’s Rights and Wrongs: Perspectives on Harm, Family, and Law (Vancouver, UBC Press, 2014).