On October 22, 2009, the Lieutenant Governor in Council of British Columbia referred to the British Columbia Supreme Court two questions on the subject on the constitutionality of the Criminal Code prohibition of polygamy. This action was taken pursuant to the authority granted in section 1 of the Constitutional Questions Act, RSBC 1996, c. 68. The questions presented to the Court read as follows:

  1. Is section 293 of the Criminal Code of Canada consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?
  2. What are the necessary elements of the offence in section 293 of the Criminal Code of Canada? Without limiting this question, does section 293 require that the polygamy or conjugal union in question involved a minor, or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?1

The Polygamy Reference was unique and remarkable for a number of reasons, including:

  1. It was the first reference of a legal question to the trial courts in a province of Canada from the executive branch of government;2
  2. It was the first time that the legal arguments of the lawyers in a trial before the British Columbia Supreme Court were broadcast live on the Internet;3
  3. It was the first time that interveners were allowed to introduce evidence and cross examine witnesses in a reference;4
  4. It was the first time that the losing side in a reference did not appeal from a trial decision.

The decision of Chief Justice Bauman is one of the longest trial judgments in the history of the British Columbia Supreme Court. However, the Chief Justice stated in his conclusion succinctly:

“There is no such thing as good polygamy.”

Chief Justice Bauman expressed this opinion at paragraph 1343 of his 335 page decision.

The trial itself lasted from November of 2010 through April of 2011.5 Over 90 expert witnesses and non-expert witnesses provided viva voce and affidavit evidence for the court.6

Notwithstanding the participation of a number of interveners arguing on either side of the Reference questions, the Government of British Columbia followed the practice in Canada and funded an Amicus Curiae to challenge the constitutionality of the Criminal Code. However, the Government took a hard line and opposed any funding for volunteer interveners in the case, no matter how close their interests were tied to the Reference.7

The decision to refer the issue to the trial level rather than the British Columbia Court of Appeal has not been explained by the Attorney General, however it appears to be based upon two factors:

  1. First, the decision of one of the previous prosecutors to refuse to lay polygamy charges was based upon the view that the law was unconstitutional and this view would not be contradicted without a full review of the relevant facts and law;8
  2. Second, a full review necessarily focuses almost entirely upon Charter section one evidence and this requires the kind of expert and victim testimony best considered and addressed by a trial judge.9

The approach of Chief Justice Bauman to the evidence was based upon the mutual goals of comprehensiveness and efficiency. He appears to have achieved both. Both sides were required to file affidavits from their witnesses (expert and otherwise). The affidavits of experts included the written reports or opinions of the experts. The lawyers on each side were was then allowed to determine whether they would accept the testimony unchallenged or require the attendance of the witness to give direct viva voce evidence and be subjected to cross examination.10 Legal counsel for each party were also allowed to call a witness to give viva voce evidence, even if the other side chose not to cross examine.11

The expert witnesses included some of the foremost scholars on polygamy. There were also experts with unique perspectives on the questions before the court. In addition, the amicus curiae presented evidence from residents of Bountiful who testified that they were acting voluntarily.

On the side of the Federal Crown was an expert from Harvard University who made a connection between polygamy and war, suggesting that polygamy made war more likely. Another unique perspective came from a San Diego State University economist who opined that in addition to the personal harm suffered by the participants, society suffered economically from the practice of polygamy.12

Chief Justice Bauman summarized all of the evidence in his comprehensive analysis of polygamy. One of his most significant conclusions on the evidence was that the freedom of religion of the residents of Bountiful, British Columbia had been infringed, notwithstanding that no person claimed that they were compelled by conscience to practice polygamy. The fact that polygamous marriage constituted a religious act in the minds of the women who testified in court appeared to be enough for Chief Justice Bauman to find a prima facie violation of section 2(a) of the Charter requiring a section one justification to survive judicial scrutiny.13

Chief Justice Bauman ultimately found that the harms associated with polygamy justified the limitations on Freedom of Religion in the Charter.14

With one exception, Chief Justice Bauman upheld the Criminal Code prohibitions in full. The exception he made was for these who were perceived to be the victims of polygamy (the wives). Chief Justice Bauman explained his reasoning like this:

[1199] There is one limited respect in which I find that s. 293 goes further than necessary in pursuit of the legislative objective, and that is in exposing young persons under the age of 18 who are parties to illegal unions to criminal prosecution. Canada continues to have paternalistic laws. Requirements that people wear seatbelts and motorcycle helmets are designed to "save people from themselves". There is no consensus that this sort of legislation offends our societal notions of justice. Whether a jail sentence is an appropriate penalty for such an offence is another question. However, the objection in that aspect goes to the validity of an assigned punishment - it does not go to the validity of prohibiting the underlying conduct. [Emphasis added.]

[1200] “Every one” in s. 293 brooks no exception and includes such individuals within its purview. As the evidence on this reference demonstrates, however, these young person are victims in the true sense of the word. Indeed, I have found protecting children from the harms of polygamy to be one of the objectives of s. 293. To subject them to criminal sanction is contrary to that objective.15

In light of Chief Justice Bauman’s decision to uphold the law, there was wide-spread expectation amongst the parties litigating the issue that the Amicus Curiae would file an appeal. They did not. No reason was given by the Amicus for the decision to lay down arms.

While no reason for the no-appeal decision was given, the consequences for both the Government of British Columbia and the Government of Canada are obvious. Both Governments will be required to go through the same evidentiary review all over again, if charges are eventually laid. This is because, under such circumstance, the accused will have the right to argue the constitutional issue and test the Government’s evidence and argument under section one of the Charter as part of a defence to the charge of polygamy under the Criminal Code. Short of a reference of Chief Justice Bauman’s decision to the Court of Appeal or the Supreme Court of Canada, the trial court in any prosecution will be required to consider all of the evidence and all of the legal arguments anew. While judicial comity will likely lead to the same result, that outcome is not a certainty. The Government of British Columbia will not likely lose the constitutional debate in any prosecution. However, the Government will have to re-expend the funds necessary to duplicate the exercise carried out by Chief Justice Bauman over the course of 2010 and 2011.

In conclusion, Chief Justice Bauman addressed a number of significant public policy and procedure issues in the Polygamy Reference and concluded that:

  1. Parliament may prohibit certain conduct in defence of marriage;16
  2. Polygamy in all of its forms is harmful to children, adults and society;17
  3. Interveners may be allowed to introduce evidence and cross examine witnesses, where the court finds it helpful;18
  4. The media may broadcast the legal arguments in a trial live by television and over the Internet;19
  5. Witnesses may testify in a reference anonymously where there is risk of criminal prosecution in another jurisdiction or in Canada;20
  6. Video evidence may be utilized in a reference trial, subject to the right of cross examination.

At present, there exists a significant decision from the Chief Justice of the British Columbia Supreme Court. However, there does not exist an appellate opinion on the subject of polygamy. While the Amicus Curiae has decided that the decision of Chief Justice Bauman will not be appealed, this does not prevent the Attorney General of British Columbia and the Attorney General of Canada from referring the decision of the Chief Justice to an Appellate Court for further review and judicial advice. If the decision is not referred to a higher court for a conclusive determination on the constitutional status of the Criminal Code ban on polygamy, there is no doubt that most of the same experts, the same parties and the same lawyers will participate in a trial of the same issues, should the Government decide to lay charges in Bountiful.