In 2011, the Supreme Court of British Columbia rendered a judgment in a reference case about various

Fantastic news! We've Found the answer you've been seeking!

Question:

In 2011, the Supreme Court of British Columbia rendered a judgment in a reference case about various provisions of the Criminal Code of Canada,including s. 290, which criminalizes marriage to more than one person, and s. 293 of the Criminal Code of Canada, which explicitly bans polygamy and threatens offenders with a five-year prison term. In the polygamy reference case, 2011 BCSC 1588, the Court held that the prohibition against polygamy is constitutionally valid and upheld the polygamy provision of the Criminal Code. While not binding - in British Columbia or in other provinces - it has been interpreted in subsequent cases, such as R v. Blackmore, 2017 BCSC 1288, which found two men guilty of practicing polygamy as charged in their individual indictments.

While the case raised and reopened the debate about polygamous marriages, it also presented questions of how the case might apply to consensual non-monogamous relationships (e.g., polyamory) beyond polygamy. If such individuals sought to marry under current laws, they would not be convicted under s. 293, because s. 293 specifically targets polygamy. But they could be convicted under s. 290, the bigamy provision, if they did indeed marry more than one person. The practice of consensual non- monogamy - being in sexual or intimate relationships with more than one person - is notcriminalized in Canada.

Section 290 of the Criminal Codeprovides that: 290 (1)Every one commits bigamy who

o(a)in Canada,

(i)being married, goes through a form of marriage with another person,
(ii)knowing that another person is married, goes through a form of marriage with that

person, or

(iii)on the same day or simultaneously, goes through a form of marriage with more than one person; or

o(b)being a Canadian citizen resident in Canada leaves Canada with intent to do anything mentioned in subparagraphs (a)(i) to (iii) and, pursuant thereto, does outside Canada anything mentioned in those subparagraphs in circumstances mentioned therein.

This case involves 3 individuals by the names of Kenny, Jacob, and Kyle (the "triad"), all of whom are in a polyamorous triad relationship and self-identify as queer men. Kenny, Jacob, and Kyle have been in a polyamorous relationship since 2016, and now they seek to get married. They are prevented from doing so, both criminally and civilly. As discussed above, if any of Kenny, Jacob, or Kyle got civilly married (i.e., fulfilled the civil requirements of marriage under the Ontario MarriageAct), they could be convicted of bigamy under Section 290 of the Criminal Code. Additionally, the triad is prevented from marrying under the federal Civil Marriage Act, S.C. 2005, c.33 which defines marriage as "for civil purposes [...] the lawful union of two persons to the exclusion of all others." You can learn more about the triad in this video:https://www.youtube.com/watch?v=iT-PXBJ8bD0(assume the triad lives in Ontario and ignore any other references to geographic location).

The triad has sought legal representation to challenge the constitutionality of s. 290, under which they could suffer criminal

penalties if they got married, and the Civil Marriage Act, which does not recognize their relationship within the context of a civil marriage. They seek to distinguish their relationship from the polygamous relationships the BC Supreme Court discussed in the reference case. They believe s. 290 of the Criminal Codeand the Civil Marriage Actviolate their rights under the Canadian Charter of Rights and Freedoms.Specifically, they believe their rights are violated under s. 7 - liberty and s. 15 - equality (marital status). They believe they can be successful because a) they think their relationship is distinguishable enough from polygamous relationships that the conclusions of the reference case are irrelevant and b) they think they can find support for their position in the Ontario Court of Appeal case from 2003, Halpern v. Attorney General of Canada, 65 O.R. (3d) 161, which held the exclusion of same-sex couples from the institution of marriage was a violation of s. 15 of the Charter.

The triad believes their rights are violated under both s. 7 and s. 15, and that those violations are not reasonable limits of those rights under the s. 1 Oakestest.

The government opposes this conclusion and believes that it is constitutional to prohibit polyamorous marriages under s. 290 of the Criminal Codeand constitutional to limit marriage to two persons in the Civil Marriage Act.They believe there are no violations of s. 7 or s. 15, but even if there were, they are reasonable limits of those rights under the s. 1 Oakestest.

Kenny, Jacob, and Kyle are all residents of Ontario. This case is now before the Ontario Court of Appeal. Ordinarily, there would be a record from the lower court, but for the purpose of this simulation, proceed as if there is no record, and you are starting your argument from scratch. All you need to know is that the lower court held for the government, so the triad are the appellants in this case. Thus, this case is The Triad v. The Attorney General of Canada.

You have one assignment in this case:

(1)to write position paper to advance an argument for your client - either the triad or the government of Canada - on which includes an argument section on oneof eithers. 7 or s. 15 and an argument section on s. 1, the reasonable limits clause. write one section 1 argument that covers both s. 7 and s. 15.

you are arguing on behalf of the triad and your brief should make the argument that their rights are violated under either s. 7 or s. 15 (and include your s.1 argument in relation to your

chosen section.) This position paper is not just a summary of your research findings.Instead, think about how best to make your case to the Court that your position is the correct one. After identifying your position, how does your research support this position? Your original analysis and thinking about the topic are much more important than the research findings. Your analysis and use of the sources in the context of your own argument is the starring role of this paper; the sources are the supporting characters. We will talk more about making solid arguments in class.

Length: Maximumtwelve. pg (minimum at your discretion), in addition to aand bibliography, in or another standard font, with normal 1" margins on all sides. Your paper should include your name

and a page # on every page. suggested maximums below are just suggestions

Similarly, the

You should NOT feel obligated to fill 12 pages if you don't want/need to... I just want

to give you the space in case you feel it would be easier for you to articulate everything you want to.

Sources:You are required to use a minimumof 5 sources (you should feel free to use more), in addition to the polygamy reference case and the Halpern case. These 5 sources must be a mix of legal judgmentsandacademic sources.We will discuss how to access case law during class. You should research and use at least 3 cases in addition to the polygamy reference case and Halpern(probably one for each of the s. 7, s. 15, and s. 1 arguments) to help you prove your case. These cases might be those referenced in the s. 7, s. 15, and s. 1 overview sections below. Generally, in legal argumentation you're seeking a case that's similar to yours that you can argue means your case should be decided in the same way or a case that's dissimilar to yours such that you can argue your case should be decided differently. For example, the appellants here would want to use the Halperncase to argue that their relationship also deserves recognition, while the government will use Halpernto argue that polyamory is so distinct from same-sex marriages that it should not deserve legal recognition. You should also research and use at least 3 academic articlesto support your argument. I suspect you will use academic articles to argue how polyamory is either similar to or distinct from polygamy.

FIRST STEPS

Your very first step should be to read the polygamy reference case and the Halpern case in full to get a sense of the legal terrain. These are included on MyLearningSpace.
You should also read these summaries of the relevant Charter sections: oS.7,life,liberty,andsecurityofperson:https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-

ccdl/check/art7.html oS.15,equality:https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art15.html

oS. 1, reasonable limits: https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.htmlTo summarize, your position paper should include:

Please include a with a for your paper, the case name, the Court in which this case is being heard, your group names, course code, my name, the university name, and date.

Introduction (Suggested Maximum: )

You should offer an introduction and overview of the argument you will offer in your position paper. What's the narrative that ties your paper together? Why have you reached this position? Think of your introduction as a place to succinctly and persuasively demonstrate to the Court that you should prevail in this case. Be creative & bold! The best introductions in legal papers capture the judge's attention and make them think about your case favourably. If you can get the judge thinking favourably about your case in the introduction, ideally, they think about everything you offer after that through a favourable lens. Your introduction should also provide a roadmap for how your paper will unfold, which will help guide the reader through the ensuing discussion. Your introduction may be longer than a typical academic paper (perhaps two. para or longer) in order to set up the context of your position paper well.

Summary of Facts (Suggested Maximum: two - pages)

Using the YouTube video provided, you will offer the facts of the case. You might also use more of the Triad's YouTube videos if you find them helpful. I haven't reviewed them all, so just make sure you are clear in your citation which YouTube videos you use. The most important thing in your facts section is this rule of thumb: touch on every critical fact that helps you form your argument later in the paper and provide any relevant fact needed for judge to understand what's going on in the case.

DO EITHER THIS SECTION OR SECTION 15, NOT BOTH.Argument Section I: Section 7 of the Charter of Rights and Freedoms (Suggested Maximum: four - 5 pg While theoretically the Triad could bring a security of person claim, for simplicity sake you'll be making a Section 7 - Liberty argument in this section. The government should anticipate and respond to a Section 7 - Liberty argument. In this section, you should:

- Outline the relevant section of the Charter (s. 7) - Provide a mini summary paragraph of the s. 7 argument you'll offer in this section - Using the polygamy reference case, the Halperncase, any section 7 case law you find and think is helpful, and any

academic articles, offer a cogent argument about your position about whether the Triad's lack of access to marriage violates s. 7 of the Charter

oWe will discuss this more in class but in general think about this format for your argument section: what's the rule or holding from a particular case that I'm using? Outline that rule or holding. Then apply it to the case at hand.

5. DO EITHER THIS SECTION OR SECTION 7, NOT BOTHArgument Section II: Section 15 of the Charter of Rights and Freedoms (Suggested Maximum: four - Theoretically, the Triad could bring lots of different equality arguments. They could argue they are not being treated equally to heterosexual individuals (sex/sexual orientation) or that they are being treated differently based on their relationship status (martial status). In other words, they could argue that lack of access to marriage for their relationship is an equality argument, because queer non-monogamous relationships are more likely to be targeted by these law (perhaps motivated by anti-gay animus) or monogamous couples can access marriage while they cannot. They might also be suggesting that they are being treated the same as polygamous relationships, but they believe they should not be treated the same, because polyamory is different.

- Outline the relevant section of the Charter (s. 15) - Provide a mini summary paragraph of the s. 15 argument you'll offer in this section - Using the polygamy reference case, the Halperncase, any section 15 case law you find and think is helpful, and any

academic articles, offer a cogent argument about your position about whether the Triad's lack of access to marriage violates s. 15 of the Charter

6. Argument Section III: Section 1 of the Charter of Rights and Freedoms (Suggested Maximum three -

Section 1 of the Charter, as discussed throughout the course, contains the Charter's reasonable limits clause. It says even though a proscribed course of action may violate the Charter, it may still be constitutional if it a reasonable limitation of an existing right. Here, the Triad will argue that their rights have been violated under s. 7 and s. 15, and these are not reasonable limits of their rights. The government will argue that their rights have not been violated under s. 7 and s. 15, but even if they were, it is a reasonable limit of their rights. In this section, you will use the Oakestest to determine whether the Triad's rights have been reasonably limited.

The Oakes Test:

Is the legislative goal pressing and substantial? i.e., is the objective sufficiently important to justify limiting a Charter right?
Is there proportionality between the objective and the means used to achieve it?

a. The second branch of the test has three elements:

"Rational Connection": the limit must be rationally connected to the objective. There must be a causal link between the impugned measure and the pressing and substantial objective;
"Minimal Impairment": the limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective. The government will be required to show that there are no less rights-impairing means of achieving the objective "in a real and substantial manner" (Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, at paragraph 102; citing Hutterian Brethren, [2009] 2 S.C.R. 567, at paragraph 55);
"Final Balancing": there must be proportionality between the deleterious and salutary effects of the law (Carter, supra, at paragraph 122; JTI-Macdonald, supra, at paragraph 45).

Here, you will need to assess what the legislative goal is in this case. What is the legislature trying to achieve and what are the measure(s) it's using to enforce that goal? Then, you will need to use the second branch of the test to determine whether there is proportionality between the objective and the means/measures to achieve it.

7. Conclusion (Suggested Maximum: one pg )

Your paper should then provide a conclusion which concisely and accurately reiterates your paper's argument. It should leave the reader clear about what the purpose of your paper was and why its analysis is important. How does it fit within the themes of the course or the broader literature that you researched? What should the reader take away from your paper? What do you want them to remember?

8. Bibliography/ListofSources

Provide a bibliography/list of sources with every source you used in your paper, academic or non-academic. You should use the same citation style which you use throughout your paper. I.e., if you use Chicago for your footnotes, you should use Chicago for your bibliography.