Tuesday, November 30, 2010

Tuesday 30th November - the first witness

There was no court yesterday, so today's session began with the first witness in the case. Dr. Angela Campbell, an assistant professor of law at McGill University was introduced by the Amicus Curiae as an expert witness on the women of Bountiful. Counsel Macintosh elicited many of her accomplishments and noted several papers that she had published on the subject of polygamy. She had clerked for Supreme Court Justice Frank Iaccobucci, and specialized in Family law and Criminal law.

However, her credentials came under severe criticism from the Attorney General of B.C., the Attorney General of Canada, and the counsel for Stop Polygamy Now. It was pointed out that her two visits to Bountiful in 2008 and 2009 had resulted in her being able to talk with only 22 women. She had no training as a social scientist and relied on the help of a graduate student in that field. One of her reasons for engaging in this research was that she believed “Before you decide what the law should be, go find out how the people concerned will be affected.” Her research did not include interviews with Bountiful leaders of either gender – she dealt only with the 22 women (and “Lying for the Lord” is apparently both taught and practised in that community.)

The Attorney General of B.C. suggested that the witness had asked far too many leading questions during her visits to the polygamous community. The Attorney General of Canada asked how any of her research subjects could be trusted to give true answers to her questions, and he pointed out the heavy responsibility that lay with the Court to make a decision on Dr. Campbell's admissibility as an expert witness. If she does indeed testify, you can read about the content of her remarks at

Saturday, November 27, 2010


Now that the opening statements are complete, the coming weeks will see a procession of witnesses and/or affidavits describing many aspects of polygamy.  The affidavit linked here will show the sunny side of life as a plural wife.

Friday, November 26, 2010

Daphne Bramham

The Vancouver Sun's Daphne Bramham has written a solid summing-up of the first week of the polygamy reference. She writes: “Is there good polygamy and bad polygamy? That was the big question raised Thursday at the end of the first week of the constitutional reference case to determine the validity of Canada's polygamy law that's being heard in B.C. Supreme Court.
But it may be one of the simpler ones, since earlier in the week most of what Chief Justice Robert Bauman heard in opening arguments concentrated on more legalistic questions focused on how to strike a balance between competing rights.”  For the remainder of her article, see here http://www.vancouversun.com/life/Should+some+kinds+polygamy+legal+others/3887017/story.html

Thursday, November 25, 2010

Day 4

25th November began with a heavy snowfall – heavy, wet snow – with warming temperatures and very slippery underfoot. The bus I took to the Courthouse slipped and slid all over the place, and at one junction tried to stop at a yellow light and ended up sideways across the road! I thought we might be in for a repeat of The Poseidon Adventure.

Day 4 of the reference began with an opening statement from counsel for the FLDS (Fundamentalist Latter Day Saints). He pointed out that this is an important test case aimed at oppressing those of Mormon faith, although Crown counsel reiterated that Section 293 applies to everyone. He also assured the court that the FLDS is accepted by the majority of Canadians, and that the consent of men and women to polygamous practices should be respected. Having asserted that there are no more harms associated with polygamous relationships than with monogamous ones, he reminded us that a change in FLDS policy made three years ago ensures that the age specifications in the law of marriage in Canada are adhered to.

Next came the counsel for the B.C. Polyamory Association, who questioned the Attorney General's decision to deal with all relational groups in the same way. He said that polyamory covered a variety of consensual adult relationships, such as one man with two women, one woman with two men, three lesbians, three gay men, and so on. There is no gender disparity, patriarchy or religious tradition. He suggested that the law, Section 293 of the Criminal Code, should apply only to marriage forms that were extant at the time of its enactment – in the 1890's. He asked the Attorney General “Where is the evidence of harm [in polyamory]? It is a concept in process.”

This concluded opening statements by counsel on both sides of the question. The Court will reconvene on Monday morning with witnesses being present.
For more information on these topics, go here

Wednesday, November 24, 2010

Day 3

Day 3 began with a spotty collection of snowflakes making their appearance. The wicked outflow winds were diminishing and the temperature rising. We are promised 10cm. to 15cm. of snow overnight. I am reliably informed by a kindly bus driver that drivers in Vancouver do not handle a new snowfall with aplomb!

But I digress …..... The first 20 minutes of this mornings proceedings were taken up with housekeeping, dealing with affidavits and witness appearances. Then the lawyer for the Canadian Coalition for the Rights of Children moved to the lectern. He pointed out that the UN Convention on the Child recognizes that children are particularly vulnerable, and that they have fundamental rights just as adults do. He also asserted that Freedom of Religion is not absolute.

An interesting moment developed when the next speaker, the lawyer for the Christian Legal Fellowship, told the the Court that he had journeyed to Turkey, and while there had investigated the daily life of the harem of the Ottoman Sultans! He spoke of a system in which one man enjoyed a multitude of wives, and guarded them closely, producing a situation where possible male challengers were know to have been murdered as a matter of policy. He said that the same harms were observed among the women in the harem as those that had been described yesterday by Crown lawyer Craig Jones. (Quite a trip for that lawyer to make in the name of research!)

Frequent mention was made throughout the day of one or other of the four basic harms caused by polygamy, and more than one counsel spoke of problems within a polygamous community.

Next came the BCTF's counsel, who argued that children's access to a quality education is almost non-existent in polygamous communities. She added that respect for religious communities is not an absolute right, and that there can be no limit set on the right of every child to adequate educational opportunities.

The final counsel for the anti-polygamy groups appeared on behalf of the group named Stop Polygamy in Canada, and reiterated many of the arguments already made.

This afternoon George Macintosh Q.C., the amicus curiae, began his presentation on behalf of no change in Section 293 of the Criminal Code of Canada. He declared that the hearing is about that section, and not about polygamy, and he also pointed out that 293 could hold women as well as men guilty of the crime of polygamy. Women could be held as co-defendants. The amicus pointed out that crimes committed in a polygamous community such as sexual exploitation, incest and assault could already be prosecuted under other sections of the Criminal Code, but, as pointed out yesterday by government counsel Jones, those communities seldom if ever report such crimes.

Read more about polygamy here

The Globe & Mail has extensive coverage of the amicus's arguments here

Tuesday, November 23, 2010

Day Two in the Courtroom

Action in the courtroom proceeded at a somewhat faster pace than yesterday. The  B.C. government's lawyer continued his opening statement, which offered several reasons for the constitutionality of Section 293 of the Criminal Code of Canada. Speaking mostly in terms of polygyny ("one man, many wives") he offered four elements of harm caused by  polygamy:-

1. Harm to the fabric of society.
2. Harm to the equality and protection of vulnerable groups.
3. Harm caused by the demonstrable early sexualization of young girls,and by a surplus of males.
4. Harm to may other participants in a polygamous society.

He emphasized that the pair bond defines Canadian society. 

The representative of the Attorney-General of Canada followed, reiterating the harms caused, and adding that polygamous women were harmed sexually and economically, and that their children had lower academic achievement and experienced psychological problems.  Boys especially, with fewer opportunities for marriage, are marginalized.  Canada's ban on  polygamy is totally consistent with practice in other develop0ed countries.  The international trend is away from polygamy.

Other questions raised during the afternoon session were "What is the difference between a religious belief and the religion itself?", and "How will the Court define exploitation.

All in all a day of significant issues to be solved, and intellectual concepts to be challenged.  It is expected that opening statements will be completed by the end of this week's session, and witnesses will begin to be called next week.

For more, read

Monday, November 22, 2010

Day One in the Courtroom

It was very cold in Vancouver this morning as I made my way to the Courthouse on Howe Street.  By 10am. the court room was full.  I counted 33 lawyers and nearly 90 people in the public seating.

After the introduction of lawyers to the judge, the morning session was mostly taken up by the CBC lawyer, who made a lengthy presentation to the court requesting that the CBC be allowed to both live-stream proceedings via computer, and introduce TV cameras into the courtroom to allow for the  filming of certain sections of the testimony to be given in coming weeks.  Chief Justice Bauman denied the request.  (A more detailed report is here)

The afternoon began with Judge Bauman's reasons for the denial, followed by the B.C. government's introduction to the case.  The government  lawyer gave a preliminary in-depth explanation of polygamy as practised in many countries and religions of the world.  He then turned to his opening statement, which gave an overview of the criminal law against polygamy in Canada, in which his main premise detailed the harm caused by the practice.  For more, see here

Proceedings were halted at 4pm., and opening statements from lawyers will continue to be heard tomorrow.

Sunday, November 21, 2010

The Journey Begins

Today I set out from home at 7am. on a drive through the mountains from the Okanagan Valley to Vancouver.  Conditions were poor - snow, ice, low cloud and very low temperatures (minus 17C at the summit of the Coquihalla Pass), but there were no real problems, and I arrived in Vancouver to find temperatures around zero degrees, with a fair amount of sunshine.

Having unpacked two months' worth of clothes, I am now settling down for a quiet evening of reading and preparation for the courtroom. 

Talk to you tomorrow.

Friday, November 19, 2010

Not Long Now .....

Everything is set for a 10 am. start on Monday 22nd November.  

The Polygamy reference will be brought before Chief Justice Robert Bauman, and is expected to continue until the end of January 2011.

For extensive background including opening statements and profiles of individuals and groups participating, see here

Monday, November 15, 2010

Questions to be asked in the reference case

This short, unattributed, article appeared in the Vancouver Sun on 9th November 2010.

"In the constitutional reference case being heard in B.C. Supreme Court by Chief Justice Robert Bauman, the B.C. government is asking these questions:

Is the Criminal Code's polygamy section consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

What are the necessary elements of the polygamy offense in the Criminal Code? Does the law require that the polygamous conjugal union involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence?"

Tuesday, November 9, 2010

Another "Poly" to think about

"The lawyer for a group that advocates allowing multiple spouses wants to know if a law against polygamy could also apply to his clients.

John Ince, who represents the Canadian Polyamory Advocacy Association, told B.C.’s Supreme Court Wednesday that polygamy is based on a patriarchal system, while polyamorous relationships are consensual."

Read more

Saturday, November 6, 2010

Preliminary Arguments

There were a few low level fireworks in the courtroom yesterday.  FDLS Mormons, not content with winning the right to testify anonymously behind screens, instructed their lawyer to ask the judge not to admit an important affidavit produced by RCMP Sgt. Terry Jacklin, who had led a 2-year investigation into the polygamous community of Bountiful.

FDLS lawyer Robert Wickett also asked Judge Robert Bauer to limit cross-examinations of Bishop Oler and School Principal Merrill Palmer to the substance of their affidavits.  Wickett argued that they should not have to respond to personal questions.  However, government lawyers stated that the B.C. Attorney General's ministry wanted to file the Jacklin affidavit.  They noted that everything in it is supported by official documents, including birth certificates signed by the fathers, all of which he would be prepared to file as evidence.

Read more here about the witness who withdrew after receiving threats because of her involvement in the case.