Some background to the polygamy reference

Wednesday, November 23, 2011

In advance of BC Supreme Court Chief Justice Bauman's opinion in the Reference re: Criminal Code, s.293 I thought I would provide a brief primer of how we came to be here. In a second posting, I will describe the legal issues.

Section 293 of the Criminal Code makes it a crime to be a party to, or to assist in the solemnization of, "any form of polygamy" or "a conjugal union with more than one person". It has been a part of our criminal law since the Code was first enacted in 1892, though it used somewhat different language. Yet it has not been used more than a handful of times, and not at all in the last fifty years.

In recent years, the British Columbia government has been interested in resurrecting the use of the polygamy law against people like Winston Blackmore who is one of the "leaders" in the community of Bountiful. Bountiful follows a particular branch of the FLDS, and is described as a breakaway Mormon splinter group. Polygamy is openly practiced, and a number of men are known to have many wives and dozens of children. There are conflicting accounts of what life is actually like in Bountiful, but women who have left the community say that they routinely were subject to exploitation, social isolation and forced childbearing.

The problem faced by the Attorney General of BC is that his own lawyers were convinced that section 293 is unconstitutional - that it violates the Charter. The Attorney General tried to proceed with a special prosecutor, but had to retain three of them before finding one who would agree to charge the men in Bountiful. After the indictments were laid, the BC Supreme Court found that the Attorney General had acted illegally by, in essence, shopping for a prosecutor to do his bidding. The Court then quashed the indictments.

The Attorney General then did what many thought should have happened all along; he decided to proceed via a reference to the BC courts, asking them whether section 293 is constitutional. References are a special kind of legal proceeding where a court is asked to decide legal questions in the absence of an actual case. They are fairly common in Canada, and while they do not technically have the force of law (they are considered merely "advisory") they nonetheless carry great weight.

Normally, references are heard in appellate courts before panels of judges. Unusually, the Attorney General decided to refer the matter to the BC Supreme Court - a trial level court. This means that it was heard before a single judge - Chief Justice Bauman. The Attorney General decided to take this route (a legal first) because he wanted to have a trial-like proceeding with witnesses, experts and other kinds of evidence.

The reference began in late 2010 and lasted six months. It involved numerous intervenors, thousands of pages of documents and dozens of witnesses. Regardless of the outcome today, the Chief Justice deserves appreciation for undertaking this monumental task.
Designed by Rachel Gold.