Beginnings

• Author: Craig Jones
• Pages: 7-49

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PART 1

Beginnings

Courtroom 55

Courtroom 55 is quite possibly the largest in the province, w ith more

than a hundred public seats; but even so, on that morning, 22 November

2010, it was packed almost to capacity. Lawyers, more than thirty of

them, lled the front half of the room arranged behind three rows of

desks in front of the bench. Even those arrangements were inadequate

for the numbers, and counsel spilled over into the seats usual ly reserved

for the jury and media. It was an ocean of black wool and silk, spattered

with stacks of paper, binders of documents, and laptops rigged to produce

transcripts of the proceedings that scrolled across the screens in real-time.

Just before ten o’clock, the room was humming with conversations,

shuing papers, and clacking keys, all of which fell silent when the clerk

appeared from the judge’s entrance and called the court to order. A com-

pact, energetic man emerged briskly and took his seat behind the raised

bench in front. is was Robert Bauman, newly appointed Chief Justice

of the Supreme Court of British Columbia. In the weeks and months

ahead, I would attempt to persuade Bauman that Canada’s 120-year-old

criminal prohibition on the practice of polygamy did not unjustiably

infringe rights of religious freedom and human liberty.1

Along with lawyers from the federal Department of Justice, my team

and I had put together a case that we believed was un like any that had

been presented in a Canadian courtroom or, for that matter, anywhere

else in the world. We had worked over months to develop a model of

polygamy and its eects that would draw on research from elds as

diverse as psychology, anthropology, political science, economics, and his-

tory. e expert evidence we would present would be supported — perhaps

particula rized is a better word — by the testimony of real people who had

observed and exper ienced polygamy and its eects on the ground. Al l of

this would be to a single end: to convince Chief Justice Bauman that the

A Cruel Arit hmetic: Inside the Case Against Polygamy

8

criminal prohibition — section 293 of the Criminal Code of Canada — was

not a meaningless vestige of Victorian prudishness but instead an import-

ant, even foundational, law that continued to perform a crucial function

in a modern democracy.

It’s customary at the beginning of a case that counsel take turns intro-

ducing themselves to the court on the record. is is not usual ly a long

process. As head of the Attorney General of British Columbia’s team, I

said my name, then those of the four colleagues who had accompanied

me that morning. en, one by one, the other lawyers stood, made their

introductions, and sat. On and on it went. Finally, the last lawyer had

taken her seat, and Bauman gazed out over the black sea. He said:

Counsel, we’re embarking upon a historic reference, and that has not

been lost, I’m sure, on all t he participants. I make one rule at the beg in-

ning and not with any intention of mak ing light of any aspec t of the

proceedings, but from now on . . . no one can move. Just for t he purpose

of the court recording a nd my own sanity, I have to know where ev ery-

one is at all times, so I ’d appreciate it if you’d stay where you are and

we’ll ma ke a map.

Amid the gentle laughter this provoked, I took a moment to turn and

look over the audience in the gallery. e fth estate was there: Daphne

Bramham from the Vancouver Sun, who had probably done more than

anyone in her investigative articles and book e Secret Lives of Saints to

bring the issue of polygamy in British Columbia to public attention and

therefore, indirectly, to Courtroom 55; Keith Fraser from the Province, one

of the few legal journalists who took the time to understand much of what

he was reporting; and Sarah Galashan, a former acquaintance from my

University of British Columbia school days, now a well-respected reporter

with CTV news. Ot her journalists I recognized but did not know by name.

e other spectators were an assortment. I picked out Nancy Maresk a

of Stop Polygamy in Canada, and two of the Mackert sisters, Mary and

Rena, now middle-aged surv ivors of an American polygamist community,

whose videotaped evidence would be played at the tria l. In the second row

I spotted the cheerful, plump woman who would oer her testimony for

the Canadian Polyamory Advocacy Association (CPAA), in an adavit

where she described her relationship with the two men with whom she

lived. She would be quoted later that week in a newspaper, describing life

with her male partners as “like going to bed bet ween two heat-seeking

missiles.” To which she added, unnecessarily from my point of view, “and

I’m the heat!” e rest of the seats held a handful of university students, a

couple of graduate researchers, court-watchers, a gaggle of judicial clerks, 2

and then scores of others who likely had no excuse but curiosity.

Beginnings

9

ere was no one in the galler y whom I could identify as coming from

the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS),

the most prominent fundamentalist Mormon organization in Canada,

based in the world-famous openly polygamist community of Bountifu l

in the British Columbia interior. I had been half-expecting the church

to pack the room with Bountiful women in their wrist-to-ankle dresses

and their hair piled into the trademark “wave.” Fundamentalist Mormon

polygamy, and its fashions, were enjoying a notoriety as a result of the

wildly popular HBO series Big Love, one of severa l television programs

set in the context of a polygamous family.3 Or perhaps, I thought, there

might be representatives from the other polygamous faction at Bounti-

ful, the breakaway sect led by former FLDS bishop Winston Blackmore,

who was himself boycotting the proceedings because the government had

refused to bankroll his involvement. But if any of Blackmore’s group were

in attendance, I couldn’t spot them.

In another indication of the degree of interest that had surrounded

the trial, our  rst order of business that morning was to argue over

whether the proceeding could be televised. e application had been

brought by the CBC, who proposed a live “webstream” coupled with occa-

sional manned television cameras. Most of the part icipants didn’t oppose

the idea, but the government of Canada objected, and Bauman ordered

that, at least for the time being, cameras were not welcome. is came as

a relief; the CBC's last-minute application had consumed a lot of my time

and eort over the previous week because my oce had agreed to work

with Court Ser vices and the network on technica l details in case permis-

sion was granted. Now we could focus on more pressing matters.

e lawyers who were there that morning, and who would reappear

throughout the trial,4 represented a broad diversity of interests: As I’ve

mentioned, the federal Department of Justice had their group (it was the

constitutionality of a federal law that was under challenge), and I had

mine for the provincial Attorney General. On the other side of the aisle,

the main players were George Macintosh, QC,5 the amicus curiae, and

two junior partners f rom his rm, Tim Dickson and Ludmila Herbst.

Macintosh and his team had been appointed by the court to lead the case

opposing the polygamy ban (I’ ll describe the amicus’s role in more detail

later). Immediately behind Macintosh sat Bob Wickett, who would be

representing the FLDS and its bishop, James (Jim) Oler. Wickett would

be assisted throughout the hearing by two solid juniors of his own, Matt

Siren and Andrew Scar th.

e other counsel were there for organizations that had been granted

the status of “interested persons”; this allowed them to make arguments,

introduce evidence, and, with leave of the court, cross-examine witnesses.