A court-appointed lawyer will not appeal a B.C. Supreme Court ruling that upheld Canada’s ban on polygamy, leaving the federal and provincial attorneys-general only two days to decide what to do next.
The decision announced on Wednesday by George Macintosh, who was appointed in the case to argue that Criminal Code provisions prohibiting polygamy are unconstitutional, does not rule out the possibility of further court action – at least not yet. The provincial or federal attorney-general can still ask for a review of the case in the B.C. Court of Appeal or the Supreme Court of Canada if they want to expand the ruling’s application to the whole country.
But they have to do it soon, because the 30-day period to appeal the Nov. 23 decision expires in two days.
In 2009, the B.C. government asked the court for clarification – a process known as a reference – of whether Canada’s 121-year-old law against polygamy is consistent with the Canadian Charter of Rights and Freedoms. Chief Justice Bauman ruled that while the ban on the practice infringed some sections of the charter, the criminalization was justified, except for children between the ages of 12 and 17.
Mr. Macintosh was not available to comment.
Margot Young, a University of British Columbia law professor, said she was surprised by the decision not to appeal.
She said it may be that “the strong factual record that was established at the B.C. Supreme Court, that polygamy seldom occurs except in the presence of harm to women and children, was not particularly helpful in finding that the provision is unconstitutional. And maybe the lawyer thought it was not a strong basis for an appeal to a higher court.”
Reference cases usually go to the Court of Appeal and not a trial court. Ms. Young said the Supreme Court allows witness testimony and the submission of evidence, which would produce a detailed factual record on the polygamy’s harm to women and children.
B.C. Attorney-General Shirley Bond said in an e-mail that “our legal counsel are continuing to review Chief Justice Bauman's comprehensive decision to determine how we will proceed from here.”
But Ms. Young said clearly the provincial government would like to have a higher court speak in favour of the constitutionality of the legislation.
“When you have only a provincial decision about the constitutionality of criminal provisions, it’s tricky,” she said. “It means the provision is unconstitutional in B.C., but it’s unclear what its status is in the rest of Canada.”
The constitutional reference was launched after B.C.'s failed prosecution of two leaders of a polygamous community in Bountiful. Charges of polygamy against Winston Blackmore and James Oler were stayed, and Crown prosecutors were reluctant to try again for fear charges would be declared unconstitutional on the basis of religious freedom.
“The B.C. government is now faced with the question of whether to proceed with a prosecution,” said Ms. Young. “The decision changes the picture from before when there was a great deal of uncertainty and differing legal opinions floating around on the constitutionality of the legislation.”
Robert Wickett, Mr. Oler’s lawyer, refused to speculate on the reasoning behind Mr. Macintosh’s announcement.
“It’s not going to be appealed and it’s now up to the Crown to decide what they’re going to do,” he said. “There’s a number of different options so we’ll have to wait and see what they do.”
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