Commercial Litigation and Dispute Resolution Blog

One of the most highly anticipated cases in British Columbia, and likely the country as a whole, is moving towards a hearing in late November 2010.  In Reference Re: Criminal Code s. 293 the BC Supreme Court is being asked to determine the constitutional validity of the criminal prohibition against polygamy.

The reference case was initiated in October 2009 by the provincial government following a failed attempt to lay charges under s. 293 of the Criminal Code against two individuals, Winston Blackmore and James Oler, in respect of allegedly polygamous activity being carried out in the town of Bountiful, B.C.  For many years, police and public officials were concerned that members of the Fundamental Church of Jesus Christ of Latter Day Saints (FLDS) were engaged in the practice of polygamy in Bountiful.  However, the Criminal Justice Branch consistently declined to approve criminal charges due to concerns that s. 293 could not withstand constitutional challenge on freedom of religion grounds.  That view was endorsed by two different independent special prosecutors appointed by the Attorney General, one of whom recommended a reference as the most appropriate means of determining the constitutionality of s. 293.

Since the reference was launched, there have been numerous procedural skirmishes that will impact upon the manner in which the hearing will finally proceed.  For example, in December 2009, the court approved the appointment of an amicus curiae to make submissions opposing the constitutional validity of s. 293.  In April 2010, the court rejected an application by Winston Blackmore to be granted full party status in the reference and for advance costs.  Instead, Mr. Blackmore was granted “interested person” status that entitles him to appear and make submissions.  In addition to Mr. Blackmore, 12 other interested persons will participate in the reference representing a broad range of interests on both sides of the issue.

Most recently, on September 24, 2010, the court granted an application on behalf of the FLDS that its members be permitted to give evidence anonymously on the ground that they would be testifying about their participation in relationships that might later be determined to be criminal in nature.

The s. 293 reference is somewhat unusual in that it is being heard in the BC Supreme Court as opposed to the Court of Appeal or Supreme Court of Canada and the judge hearing the case, anticipated to be Chief Justice Bauman, will be presented with extensive evidence concerning the practice of polygamy.  Much like the seminal Same Sex Marriage reference case of some years ago, the s. 293 reference has the potential to redefine the institution of marriage within Canadian society and, as such, the case will be followed with considerable interest across the country.  We will continue to monitor and report on key developments as they occur.