AuthorCraig Jones
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
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
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.

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