A very important legal decision is the Polygamy Reference of 2011. ( Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 )

Canada had criminalized polygamy in 1890, and polygamy had never been removed as a criminal offense. Polygamist families created communities in the United States and in Canada. The most well-known in Canada was in the town of Bountiful, British Columbia.

Despite the fact that polygamy remained a criminal offense, the Crown declined to prosecute polygamists. The question arose as to whether or not polygamy should even be a criminal offense, given the changing norms of society, as well as the freedoms granted by the Canadian Charter.

After several years of debate among government representatives, it was decided to hold a Constitutional Reference trial – the first of its kind in Canada. ^[1]

This unprecedented and unique trial resulted in a decision that showcased the harms to women, males, children, and to society in general, as a result of polygamy. The constitutional need to protect against these harms is greater than protecting sincerely held religious belief of polygamists.  Canada’s international obligations of needing to protect against harm was found to be applied, not just to government, but also to “private actors.”

As a consequence to the polygamy reference, the leading polygamists in B.C. were finally charged, and were convicted.

The reference trial did not take place in a “factual vacuum,” but had voluminous reference material, expert witness affidavits and testimony.

Importantly, there were 24 lay witnesses who submitted affidavits – written as well as some by video. Some of these witnesses also testified viva voce. Thus, the court was able to see the human face of the resultant harms of polygamy.

Some of the harms that were identified during the trial were:

• a controlling central figure
• a lack of independent thinking and education
• isolation from mainstream society
• reliance on violence
• the natural unfolding of the minds and personalities is prevented
• high levels of stress, conditioning, and trauma
• the loss of family, friends, and the familiar
• lack of socialization in the outside world and deficits in coping skills
• incidents of sexual abuse
• mental health issues
• extreme secrecy when interacting with outsiders
• training of children for obedience and a general culture of subservience
• devaluing of education
• inequality of women
• lower levels of self-esteem

The Court’s decision in the polygamy reference is lengthy – 357 pages. To read some of the key points only, they are listed here.

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1. “Procedurally unprecedented and legally unusual, the Polygamy Reference proceeded pursuant to British Columbia’s Constitutional Questions Act, which allows for references to the BC Supreme Court. The idea of a reference had been initially rejected because such proceedings customarily take place before the Supreme Court of Canada or a provincial Court of Appeal, where arguments are heard in factual vacuums, precluding the opportunity to develop an evidentiary foundation. Both personal and expert evidence about polygamy and its harms was something that senior counsel, Leonard Doust QC and Richard Peck QC, had deemed crucial if the section 293 prohibition was to endure in the face of apparent interference with the Charter rights and freedoms of its participants.

   The trial court reference would be the first of its kind, with [Craig] Jones leading a dedicated and talented team of lawyers from the provincial Attorney General, working alongside lawyers from the federal Department of Justice. George McIntosh QC (now a Supreme Court Justice) was appointed as amicus curaie to litigate the opposing position.” Book review by Anne Cochrane of the book: “A Cruel Arithmetic” written by Craig Jones – http://www.cjccl.ca/wp-content/uploads/2015/01/18.-Cochrane-A-Cruel-Arithmetic.pdf ↑