Notes

• Author: Craig Jones
• Pages: 351-371

351

Notes

Part 1: Beginnings

1 I hope I will be forgiven if I do not slavishly adhere to the customs of

Anglo-Canadia n legal nomenclature, which would requi re that I refer

to “the Chief Justice,” “Bauman CJSC,” or “His L ordship.” As with my

frequent omission of other formal tit les and subnominals, such as “Dr,”

“Professor,” or “QC,” I’ve made this choice to improve readabilit y and avoid

distraction.

2 ese are recent law graduates who spend a yea r in the court assisting

judges, mostly with re search and writing. It is an excellent apprentice-

ship, particu larly for aspiring litigators. From a lawyer’s point of view, the

number of clerks present in the audience i ndicates one of two things: either

the judge has agge d the case as particularly dema nding so as to require

their assistance, or t he clerks themselves have identied the proceedi ngs as

particularly interesting, because of the issues , parties, or counsel involved,

and therefore worth a look. I suspect in the polygamy case both fac tors

were at play.

3 Big Love, for those unfami liar, is the story of a polygamous Mormon man

trying to ma ke it as an “independent” in Salt Lak e City after leavi ng “the

Compound” at “Jun iper Creek” run by the “United Eor t Brotherhood,”

all fairly obv ious references to the real FLDS community at Short Creek

and the United Eort Plan, t he trust under which it operated. e ctional

UEB in Big Love wa s based in Southern Utah with an outpost in Ca nada;

it had child brides, lost boy s, and a scary aspiring prophet with repressed

homosexual tendencies who usurped his father’s power after the elder man

suered a stroke. e show ran for ve seasons, concluding in the same

year the Polygamy Reference was de cided.

4 I refer throughout to the “tria l.” Technically speaki ng, it was not the trial

of an action, but rather a hearing of a reference proceeding. I prefer to ig-

nore this formalit y because the Polygamy Reference had the basic struct ure

of a trial, inc luding live witnesses, gow ned counsel, and so forth, and to

call it such al lows me to distinguish the main hea ring from preliminary

proceedings “in chambers.”

A Cruel Arit hmetic: Inside the Case Against Polygamy

352

5 Senior lawyers in British C olumbia, as in England and other C ommon-

wealth jurisd ictions, are sometimes granted the title “Q ueen’s Counsel.”

In British Columbia, the desig nation is an honorary title bestowed on a

couple of dozen of the province’s ten thousand law yers per year. A number

of the lawyers refer red to in this book have been awarded their QC, but (as

I mentioned in above note 1) to avoid some awkwardness and overformality

of writing I have chosen to om it this and other subnominal designations

from the text from here for ward.

6 I had learned that West Coast LEAF shou ld not be confused for a subsidi-

ary of LEAF, the nationa l organization base d in Toronto. Indeed there

seemed to be some sensitivity a round the subject. Similarly, the BC Civil

Liberties Assoc iation is unaliated with the Canad ian Civil Liberties

Association, and many of the members of the former (which was estab-

lished rst and has a g enuinely national prole) consider the latter to be

something of an Eastern u surper, and some might occasionally be caught

derisively referring to t he Toronto Civil Liberties Assoc iation.

7 Reference re: the Constitutionality of s. 293 of the Criminal Code of Ca nada

[Polygamy Reference]. e judgment of the Supreme Cour t of British

Columbia can be found at 2011 BCSC 1588.

8 is wasn’t solely metaphor — Erick son’s low-slung design was adopted

only after the original proposal — for a Manhattan-scale skyscr aper that

would have been Vancouver’s tallest even today — was abandoned a s too

dominant and imposing. Erick son’s vision was of law courts as public space,

rather than Dracu la’s tower.

9 It is a frequent surprise, part icularly to American visitors, to lear n that

the “Supreme Court of British Columbia” is not actually the highest cou rt

in the province. It is cal led “supreme” to distinguish it from the “infer ior”

provincial cour ts, but is in itself below the appellate courts , which are the

BC Court of Appeal a nd the Supreme Court of Canada, which is actua lly

(as if it weren’t confusing enough) the supreme court of Canada.

10 e ground level is cal led the second oor, and the public elevators reach

only to the “four th” (actually the third) after which you must walk some

distance and tak e another elevator to the remaining levels. is wa s said to

be a security measure, to hinder escape attempts by cri minal defendants. In

my observation it has trapp ed far more tourists.

11 A barrister in the Eng lish parlance is a trial law yer, as distinct from a

solicitor who advises cl ients but does not generally attend cou rt. In Canada,

a lawyer upon being ad mitted to his provincial law society is qualied to

practise as either, or both.

12 e “purse” theory of the sa sh, I concede, has been persuasively attacked

by historians of court dress who claim that it was never a rec eptacle for

money but instead represents a vestigial hood that was part of the ori ginal

“mourning gown.” Alt hough this explanation is at least as credible as mine,

I nd it far less char ming and romantic and so choose to disbelieve it. And

regardless of its act ual origins, the lack of an equiv alent feature on the

gowns of judges, cour t clerks, and Queen’s Counsel is proof that life can

imitate legend to benecial eec t.