Academic journal article Emory Law Journal

The Most Comprehensive Judicial Record Ever Produced: The Polygamy Reference

Academic journal article Emory Law Journal

The Most Comprehensive Judicial Record Ever Produced: The Polygamy Reference

Article excerpt

ABSTRACT

In the fall of 2010 and the spring of 2011, the Chief Justice of the Supreme Court of British Columbia presided over an unprecedented proceeding in Canadian legal history-a "reference" hearing conducted at the trial court level into the constitutionality of Canada's criminal prohibition of polygamy. The authors are legal counsel at the Department of Justice and were part of the legal team that successfully defended the constitutionality of the prohibition on behalf of the Attorney General of Canada.

This Essay discusses various aspects of the litigation, including the uniqueness of the proceeding, the voluminous evidentiary record it generated, the positions taken by the primary participants, and the Chief Justice's decision. The record before the Chief Justice provided an unparalleled overview of the impact of polygamy on individuals, communities, and nation-states and led to his ultimate conclusion that polygamy, as a marital institution, is inherently harmful.

INTRODUCTION

Canada's statutory prohibition on polygamy has been around for over 100 years. It originated primarily in response to concerns that the existing prohibition on bigamy was not sufficient to capture nonlegal plural marriages.1 A conviction for bigamy required an attempt to enter into two or more legal marriages, and some forms of plural marriages, such as Mormon "spiritual" marriages, were conducted in private ceremonies and were thought to be technically exempt from the prohibition on bigamy.2 In order to ensure that these marriages would be caught by the criminal law, Section 293, which prohibits multiple marriages, whether sanctioned by civil, religious, customary, or other means, was added to the Criminal Code of Canada in 1892.3

In the years following the enshrinement of the Charter of Rights and Freedoms into the Canadian Constitution in 1982,4 questions arose as to the Charter compliance of the Criminal Code's prohibition on polygamy. Various levels of government, as well as civil libertarians and some religious organizations, wondered if the prohibition may offend the Charter's guarantees of religious freedom and life, liberty, and security of the person. It was thought that the prohibition was inappropriately based on a Christian worldview that privileged monogamous marriage and excluded other forms of consensual, loving relationships. Canada's growing acceptance of different forms of relationships, including the legalization of same-sex marriage in 2005, further called into question the constitutionality of the prohibition on polygamy as many wondered how Canada could justify criminal sanctions on some forms of nonnormative relationships but not others.

Given the existence of a large community of Fundamentalist Latter-day Saints (FLDS) in Bountiful, British Columbia, the province of British Columbia had a particular interest in the constitutionality of the polygamy offense. After many years of legal opinions from government lawyers, as well as outside counsel, the provincial government decided to obtain an opinion from the Supreme Court of British Columbia (BCSC) on the constitutionality of Section 293. On October 22, 2009, the Lieutenant Governor in Council of British Columbia asked the BCSC to conduct a hearing into the constitutionality of the Criminal Code's prohibition on polygamy in Reference re: Section 293 of the Criminal Code of Canada (the Polygamy Reference).5

We were part of the legal team representing the Attorney General of Canada (AGC) during the hearing of the Polygamy Reference in the fall of 2010 and spring of 2011. Along with the Attorney General of British Columbia (AGBC), we defended the constitutionality of the prohibition. The Chief Justice of BCSC was appointed to hear the reference proceeding and he, in turn, appointed an Amicus Curiae to argue that the prohibition was unconstitutional. In addition to these three primary participants, the Chief Justice permitted eleven advocacy organizations to intervene in the proceedings. …

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