POLYGAMY: Point of clarification

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By Claudia Rodrigu... on 22 August 2010 - 3:00pm

My motivation for submitting this resolution was to uphold human rights, basic human decency, and protection of children from child service workers that may arbitrarily judge these children's parentage in their moral shadow as "unfit" and work to turn otherwise healthy children into displaced crown orphans.

On April 3rd, 440 children were taken from their homes and families after child-"protection" officials in Texas raided a polygamist compound (http://www.msnbc.msn.com/id/24777095/).

Elizabeth May presented herself as speaker in opposition of this motion by arguing that she isn't convinced the Criminal Code of Canada (CCC) makes polyamorous relationships illegal. (http://cnews.canoe.ca/CNEWS/Canada/2010/08/22/15103006.html)

In consideration of the leaders law background, party members took this influence as misrepresented fact that led to voting against the motion.

The Criminal Code of Canada reads 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.

Evidence in case of polygamy

(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.

R.S., c. C-34, s. 257.

A feel of the room suggested Greens are not fundamentally opposed to this motion, just insufficiently informed to make an affirmative. This became even more challenging when the leader imposed a reccomendation that failed on merit and fact. I received considerable feedback in favour of opening the floor to a discussion. I hope we can begin with this point of clarity as it pertains to a matter of legal education, and move forward to discussing this motion with less emotional persuasion and more precision in the facts and due diligence to whom the submitters of this motion intended it for.

CRL

 

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Subsection 2 of section 293

Submitted by Claudia Rodrigu... on 31 August 2010 - 11:12am.

Subsection 2 of section 293 is "legalese" summarized into one word: reverse onus. This is a legal allowance through the notwithstanding loophole in our constitution that turns the onus onto the accused to prove his/her innocense. In effect, guilt is thrust onto the accused to defend the charges against him/her.

I have been advocating for the rights of an accused since I began watching law and order at 9 years young. I skipped class during elementary and highschool (not such a good idea in hindsight since it took me an extra 2 years to graduate) to visit the Toronto reference library's law floor, where I took an interest in studying wrongful conviction cases and death penalties before the abolishment of Capital Punishment in 1976. Just some insight into why this resolution interested me. Prejudices and taste aside, it's an issue of protecting people. At the very least, I would compromise by removing subsection 2 and restoring this law in keeping with a presumption of innocense as per our constitution.

Polygamy?

Submitted by Bram Kivenko on 31 August 2010 - 7:28pm.

I would agree that Greens are generally against the prohibition of unofficial polygamous unions.  I believe, however, that I am not unique when I say that codified polygamous relationships should remain outlawed without regard as to whether codification is contractual in nature or by religious tenet.

If legally, state recognized unions are limited to two people, and the state can retain the right to compel society to avoid misogynous or misandrous relationships, then I guess I don't see the point in criminalizing what people do in their own bedrooms.

I do have problems with state recognition of polygamous relationships simply due to math.  If we allow more than one legal spouse per person, then can we establish any upper limit, and if not, how is the state supposed to handle unions of indeterminate size?  This is not a facetous question.  There are far reaching implications if the state formally recognizes polygamy.  I certainly have problems with misogyny.  That makes the topic a bit messy.

Who determines "official"?

Submitted by Michael Kenny on 31 August 2010 - 8:52pm.

1. Who determines what polygamous unions are official and unofficial?  What about laws relating to common law relationships?  When do these apply?

2. There is a different between decriminalization, that has been proposed within the Green Party of Canada, and legalization/legal recognition.  

Official?

Submitted by Bram Kivenko on 1 September 2010 - 7:17am.

Decriminalization does not officially recognize polygamy, so maybe you are answering your own question.

But, anyway, if you think Canadians will stand by and allow misogyny perpetrated under the guise of religion, then I won't bother to rebut you.  I'll just toss it onto the pile of things we do as Greens to make sure we are unelectable.

Let's focus on the constitutionality rather than the aesthetic

Submitted by Claudia Rodrigu... on 1 September 2010 - 4:08pm.

Section 293, subsection 2 is unconstitutional. The notwithstanding loophole is null and void when we make a case for Absolute liability as an infringement of our constitutional right of presumption of innocense, and life, liberty, and security of the person.

I appreciate I'm commiting the impropriety of boring the reader with a load of "legalese". I'll try to write in English.

Our constitution is the supreme law of this country. It also includes the charter of rights and freedoms. It sets precedence over any and all laws, at all levels of government, by all governments. To ammend the constitution, you would need the House of Commons, senate, and two thirds of all provinces to accept the resolution. An absolute liability is a criminal or civil standard to mean you have no defense. In other words, you are guilty whether or not you fundamentally are, intended the crime, or lacked the capacity to fully appreciate the crime. The items I just mentioned are conditions of finding guilt in an accused person. They represent the mens rea (intent) and actus reus (act) of commiting the crime. Without these two elements, a judge, jury, or combination of the two cannot find criminal guilt in the accused person. Laws legislated by poor policy makers are called absolute liability cases, or strict liability cases (where you must only prove actus reus). They are bad policy because they cause unnecessary arrests, unnecessary tax dollars to process and prosecute, and after all this waste, are unenforcable because they violate section 7 of the Canadian charter of rights and freedoms, (Part 1 of our constitution), and section 11 (d):

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,

(An absolute liability case where there is a term of imprisonment means you go straight to the dog house, where you render to the deprivation of the right to "life, liberty and security" of your person.)

Section 11 (d): d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(section 293  (2), is a reverse onus charge, presuming guilt onto the accused, having to now defend his/her innocense).

So the question lies, does the Green Party support a needless waste of tax payers dollars through laws that are of no force and effect, because of their unconstitutionality?

Are we a party of members that let personal convictions cloud our judgment in the interest of what is best for Canadians?

I sure hope not. I'd like for our party to bring this resolution back and vote on the facts and merits just presented.