A Primer on the Polygamy Reference

The constitutionality of Canada’s criminal law of polygamy is currently before the courts.  Over the next two months, the court will hear from governments and intervenors, experts and polygamists, about whether polygamy should remain criminalized.  Make sure to check in at SexText for continuing coverage and analysis of the arguments being made in the Court.  But, first, a primer:

A Primer on the Polygamy Reference:

The polygamy reference case began yesterday in Vancouver.  The case is about whether s. 293 of the Criminal Code prohibiting polygamy constitutional.   The question has been on the radar screen for years, as the British Columbia Attorney General tried to figure out what to do about the Fundamentalist Latter Day Saints that practiced polygamy openly in Bountiful, British Columbia.  They could charge them, but many folks in government were worried that the polygamy law would not withstand constitutional challenge.  More specifically, the worry is that the law might violate the right to freedom of religion in the Charter of Rights.

The Attorney General sought a bunch of expert opinions. Most told him he should send the law to the courts on a reference, and determine its constitutionality before laying charges.  But, in January 2009, a special prosecutor went ahead and charged the leaders of Bountiful – Winston Blackmore and FLDS bishop James Oler  – with one count each of polygamy. Those charges were subsequently stayed because a B.C. Supreme Court justice determined that then-attorney-general Wally Oppal had improperly hired the special prosecutor who recommended the charges.

Instead of appealing that decision, Oppal’s successor, decided to go with the reference case.   The reference has asked the Court two questions:

• Is Section 293 consistent with the Charter? If not, why not?

• What are the necessary elements of an offence under this section? Does it require that the polygamous union involve a minor or occurred in the context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence?

The attorneys general of British Columbia and Canada will both argue in favour of the constitutionality of s. 293.   They will be joined by a lot of intervenors: Stop Polygamy in Canada, Christian Legal Fellowship, B.C. Teachers Federation, West Coast LEAF, Real Women Canada, Canadian Coalition for the Rights of the Child and the David Asper Centre for Constitutional Rights.

On the other side is a court appointed lawyer, George Macintosh as the amicus curiae — friend of the court — who will argue that the law is unconstitutional.    He will be joined by the Fundamentalist Church of Jesus Christ of Latter Day Saints, Canadian Polyamory Advocacy Association, B.C. Civil Liberties Association and the Canadian Association for Free Expression.

The case is being heard by Chief Justice Robert Bauman.   It is expected to go on for at least two months, during which the Court will hear from a broad range of experts and polygamists.

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