Polys in Court - first hand report - Day 4 and issues held (Day 5)

Day 4 or Thursday November 25 began later than usual at 11 am.  It was a good thing as there had been some snow fall overnight and roads were a bit slick in Vancouver.  There was a decided lack of media as we arrived at the court house.  Once we were inside the court room stragglers began to appear notebooks in hand and the mood of those in attendance was a quiet excited anticipation of the last few opening statements which would likely be the more controversial.

Before the court heard the these opening statements the BC AG sought the advice of Justice Bauman with regards to his application for a publication ban on the video affidavits which have been posted to the Vancouver Sun's website and one other location.  Justice Bauman asked the lawyer for the BC AG to determine which media outlets had been served notice of the application and when so that adequate time to respond was offered to them.  Mr Jones, lawyer for the BC AG removed himself from the court room with the Judge's leave to find that out.

The lawyer for Oler and the FLDS church spoke first.  His viewpoint is that this law prohibits the binding agreement not the activity that is described.  The crown must prove that the accused entered into a multiple partner relationship and believed it to be binding upon themselves for a period of time.  The law does not prohibit living with, having sex with, having children with nor loving more than one person.  It prohibits the contract.  A criminal offense cannot be described in such a way as that it depends on the activity of a third person.  The idea that the law kicks in when an authority sanctions unrelated a voluntary act of the accused people in the relationship.  So the situation becomes an offense when a third party (authority) sanctions it which is contrary to basic criminal law where a criminal offense is a voluntary act of the accused.  Section 293 is merely a crime of status by prohibiting the status of two or more persons who are in a conjugal union behaving in an otherwise perfectly legal manner.  The FLDS are not participating in this reference to defend their beliefs which they understand are observed with scorn by many Canadians but they wish to challenge the prohibition on plural and arranged marriages as the law applies to them.  The members of the FLDS freely choose to enter into plural marriages because of their beliefs and in contrast to a secular view of rights and brain damage as others would suggest.  He indicated that there are 550 people in the FLDS part of the Bountiful community which does not include those aligned with Blackmore.  183 of those are over 18 years of age, 115 of those are married, 60 in monogamous marriages and 55 in plural marriages.  Of the 68 unmarried adults, 13 are formerly married.  There are 22 youth aged 16 or 17 and none are married.  He discussed the evidence of witnesses that he will bring forward to speak to the motivation and experience of polygamy from men and women within and having left the community.  He will not file the affidavits of Oler and Palmer at this time and some 12 of his witnesses have sought anonymity.  He said that the prohibition on polygamy ostracizes community members from medical assistance as fear of prosecution under the law is feared and legal assistance is costly.  He indicated that his witnesses will testify that they do not want to live separate from society and want to ensure that when help is needed in family breakdown that it can be safely accessed.  He then entered his evidence for the record and numbering identification.

John Ince, lawyer for the Canadian Polyamory Advocacy Association spoke next.  John said that the doctrin of reading down a law to find a interpretation indicates a narrower or a surgical approach not the blanket approach of the AG's positions and contrary to the charter. His position is that the law is flawed because it targets people beyond the primary focus of fundamentalist communities.  The focus of the AG's is on a patriarchal system where there is an imbalance of power in multiple partner relationships and in the general community which may well be impacting social problems.  They have not restricted themselves to these communities but have included a large number of people who likely dwarf the number of people in partriarchal communities and he will be presenting evidence as to the size of the non-partriarchal community which he will refer to hereafter as the polyamourous community.  There are key differences between these communities: conjugal freedom (to chose who, how many, what gender, and the length of the relationship); no religious tradition to the relationship form; a modern relationship structure having been coined as polyamory only 30 or 40 years ago; and occurs in the mainstream community.  The idea that if a relationship is celebrated and formalized it becomes illegal regardless of the fact that in no other way have the participants harmed themselves or anyone else is discriminatory.  He gave several examples of otherwise law abiding neighbours in similar relationship structures would be open to prosecution for throwing a party to celebrate their relationship and said that this law could break up loving families. This is deeply disturbing to the polyamourous community.  It is inferred that women if not protected by this law will wander off into polygamous households and cannot be left to make their own choices.  These arguments were used to prevent women from having the vote  and gays from having relationships as unnatural activities.  We now know that this is the embodiment of prejudice and nothing to do with harms.  He discussed the issues raised by the BC AG around determining whether one could easily determine the patriarchal nature of a plural relationship or not.  He indicated that several key questions asked by a border guard to three people attending at his station would determine an attitude of egalitarianism in the relationship that would negate patriarchal philosophies.  Also he said that three people listing the same address might be assumed to be polygamists when in fact they are college roommates.  The blanket inclusion approach causes huge problems where a more surgical approach would not.  By allowing for this law to break up loving families the AG's have lost their moral compass.

I particularly like that last image. 

Mr Ince entered his exhibits for the record and numbering identification.  The BC AG reported to Justice Bauman that there is one lawyer representing most of the media affected by his application for a publication ban and that while he could proceed today would be better suited and prepared if it were held over for tomorrow.  Justice Bauman set a hearing on the issue for 10am the following day.
On Friday morning, BC AG's application for a publication ban on the video affidavits indicated that Daphne Brahmin had approached the court for access to these affidavits and she as well as other media were given copies by the court.  The BC AG's understanding was that this was approved access to report on contents not approval to publish the videos themselves.  The media response was access came with an assumption of publication in total.  Justice Bauman asked if this were an intrusion on the case and a contempt issue.  There was some discussion as to whether the tapes were the property of the BC AG until they were actually presented in open court or if once submitted to the court registry they were then the property of the court which I think means public domain.  As once my affidavit was submitted to the court registry it was available for anyone to ask for a copy and thus our written affidavits are all posted by the Vancouver Sun to the internet as well.  BC AG quoted case law and procedural directives where a witnesses video testimony could not be broadcast without their specific consent.   Justice Bauman reserved his decision for Monday morning and would not issue and injunction requiring them to be taken down and no others posted before Monday.

It was a really interesting look at the etiquette of the Supreme court and the things that do not appear in transcripts or reports.  The humour of Justice Bauman is very subtle and his quick comments that question even the most aside comment of the lawyers keeps them focused on task and in line.  He most assuredly has a good grasp of what polyamory is and asked several times about the impact of the various positions on people practicing polyamory.  We must keep the issue alive in the media and jump on the comments and opinions online and in the media.

On another note, I am privy to the financials of the Canadian Polyamory Advocacy Association and have been elated at the donations rolling in from all over the world.  It is most encouraging to see that kind of support. 

Down the street from my hotel, in the next block actually, is a store with a huge sign on the back wall behind the counter.  Its a wall mural of sorts that features a photo of Pierre Elliot Trudeau in his salad years as my dad would say.  Big grin and the rose in lapel.  This photo is easily 10 foot tall by 8 foot wide with the quote super imposed "there's no place for the state in the bedrooms of the nation".   I considered this a good omen as I passed it every day and nodded a greeting to old P.E.T.  I was very lucky to have had my posse of wonderful loving family and friends with me this past week. I'm exceptionally glad to be home but proud to have been present and accounted for in this moment of history.  I have no further vacation time and so will be reporting based on transcripts until the New Year.