The Canadian Polyamory Advocacy Association (CPAA) wants to know if the provincial and federal governments think polyamory falls under the current legal definition of polygamy.
The CPAA brought the motion to Chief Justice Robert Bauman on Sept 8. It was heard as part of a court reference to examine the constitutional validity of Section 293 of the Criminal Code of Canada. Section 293 bans polygamy.
The CPAA wants to know if polyamorists will be caught under Section 293 should it be determined that the section is constitutional.
CPAA lawyer John Ince told Bauman the attorneys general for Canada and BC have not delineated what their thinking is on the polyamorists.
That, he said, makes it hard for him to prepare a case.
In his decision released Sept 16, Bauman notes "the association and its members are not accused persons in a criminal proceeding."
As such, he says, "invoking a right to make full answer and defence in a reference proceeding is not apt."
Bauman says the CPAA should not restrict itself to positions advanced by the attorney general. He invited the group to develop its own views on the constitutionally permissible reach of Section 293, and to file supporting evidence accordingly.
"While I appreciate the association's wish for some clarity in this regard so as to better focus its evidence and argument, I decline to grant the relief sought," Bauman ruled.
"We're not patriarchal. We're not intergenerationally normalized," he says. "We clearly fall outside the definition of the offence. If there are other elements, please specify."
He says poly relationships can be homosexual, bisexual and transgendered. That is not the case with polygamous relationships, he notes.
If polyamory is found to be criminal, offenders could face five years in prison.
But, Ince added, evidence filed by the attorneys general contains no direct evidence pertaining to polyamorous relationships in general, or the five described in affidavits the CPAA itself has filed.
"We are asking why the polygamists get all the details. We get nothing," Ince told Bauman. "Give us the facts. What are the harms associated with polyamory? We'll proceed from there."
But, countered Crown lawyers, that is the point of the reference.
BC Crown Craig Jones and federal Crown Deborah Strachan argued that what Ince is asking for is a detailed analysis of the law before the case starts in November.
Strachan said the ruling Ince seeks could be used as an immunity from prosecution in the future. That would be a violation of the right to prosecutorial discretion in Canada, she added. She said the Crown's opposition is not an attempt to take the CPAA by surprise or hold its cards close to its chest. They will get the position of the attorneys general on this point in due course, she said.
Jones added there is currently no legal or psychological definition of polyamory.
He called the people in Ince's affidavits polyandrous, a relationship in which a woman has two or more husbands at the same time.
The constitutional reference arises from the failed polygamy prosecution of two men from the BC community of Bountiful. Winston Blackmore and James Oler are members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) in which polygamy is practised.
They were arrested in January 2009 and charged under Section 293.
A BC Supreme Court judge agreed last year with the men's lawyers that then-attorney general Wally Oppal had gone "prosecutor shopping" in order to lay charges.
Blackmore, who was not in court on Sept 8, has maintained the outcome of the reference will determine his constitutional rights, in this case, freedom of religion and his faith's belief in marriages with multiple wives.
A so-called amicus, or friend of the court appointed to represent the interests of the FLDS, spoke in favour of the CPAA motion. Amicus lawyer Tim Dickson said the reference itself is the constitutional challenge a polyamorist who is charged under Section 293 could ordinarily use in such a case.
"Is polyamory a crime or not?" asked Dickson. "The polyamorists have a lot at stake in this reference."
Dickson said Ince is "simply asking" the legal position of the attorneys general so he can respond to it.
As part of Ince's submissions to the court, he included a survey of polyamorous relationships.
Of 188 people in polyamorous households that responded, 112 were currently living in one or more households in a conjugal union of three or more people.
The total number of women was 167, while there were 158 men and 40 self-identified as other. In comments, the latter were explained as gender fluid, transsexual, transperson, trans-identified, androgynous, intersex or gender queer.
Ninety-nine respondents had no minors under 19 in their households. Another 53 households had one or two minors, while 17 had three to six minors. Two identified as having seven or more minors.
Sixteen of the unions of three to five people were reported to have been sanctioned by a rite or ceremony, contract or consent other than a legal marriage. Another 30 conjugal unions of three to four people were reported, indicated by a verbal or written agreement.
Seventy-four respondents reported they felt they were limited in being able to express or practise their religious beliefs or live in keeping with their conscience under Section 293.