Few court decisions are as exhaustive, decisive and just plain long as a landmark B.C. ruling on the constitutionality of polygamy.
However, legal experts say B.C. Supreme Court Chief Justice Robert Bauman’s 335-page ruling would be vulnerable on appeal because of key assumptions involving morality and Canadian social values that lie at its heart.
They say that, while the judgment is on safe ground in rejecting some polygamous relationships as vile and exploitive, it runs into trouble by tarring all polygamists with the same brush and describing monogamy as a near-sacrosanct aspect of Canadian society.
University of Toronto law professor Brenda Cossman speculated that Chief Justice Bauman became so repulsed by a controversial polygamous sect living in Bountiful, B.C., that he lost sight of the fact that the polygamy law also ensnares other benign, unconventional relationships involving more than two individuals.
“The decision is built on a house of cards,” Ms. Cossman said. “You can’t just say that marriage is better than non-marriage. What happened to swingers? What happened to people who are adulterous? His continuous assertion about the harm that polygamy does to monogamous marriage is deeply problematic.”
In his ruling on Tuesday, Chief Justice Bauman found that a Criminal Code prohibition on polygamy breaches the constitutional right to freedom of religion and to life, liberty and security. However, using section one of the Charter of Rights, he found that the harm caused easily justifies the law.
“Balancing societal interests versus individual interests is intrinsically a very subjective process,” said Osgoode Hall law professor Alan Young. “It makes anything appealable and it makes anything defensible.”
Mr. Young also said that any law that treats all individuals or scenarios the same way could run into trouble. “It would be a big mistake to make a decision on the constitutionality of polygamy based on one community,” he said. “There are very few core values in society, and values are changing all the time.”
A lawyer for the B.C. Civil Liberties Association, Monique Pongracic-Speier, said that Chief Justice Bauman made a genuine attempt to distinguish between the Bountiful polygamists and others, “but the fact of the matter is that Bountiful is the only community in Canada that has a clearly identified link with the practice of polygamy.”
Ms. Pongracic-Speier said her chief concern is that the judgment endorsed the use of criminal sanctions to deal with behaviour that can be controlled through other means.
Bruce Ryder, another Osgoode Hall law professor, said the decision has a fundamental flaw that will likely doom it. “He placed an ideological and constitutionally dubious premise at the heart of his opinion – namely, that the state can punish other family forms for the purpose of promoting monogamous marriage.”
But legal observers agreed on one point – that the decision rightly emphasizes the harm polygamy can do to women and children.
Queen’s University law professor Nick Bala also praised the judgment for stressing that the law prevents Canada from being flooded with applications from prospective immigrants seeking a safe place to practice polygamy. “This judgment is by far the most comprehensive look in the world at this issue,” he added. “It’s a very strong decision.”
Nonetheless, Chief Justice Bauman’s decision is not binding on any other judge. Nor does it prevent police and the Crown from prosecuting individuals immediately should they chose to do so.
Partly for that reason, and partly to avoid costly re-litigation on the same issues, most experts would like the parties to seek leave to appeal it to the Supreme Court of Canada.
“We don’t want to spend all this money for somebody in Ontario to turn around and say: ‘That’s only a trial decision; let’s do it again,’ ” Mr. Bala said.