Trial Diary

AuthorCraig Jones
Trial Diary
Opening the Case
e trial of the Polygamy Reference began, incredibly, on schedule, the
day the Chief Justice had set: Monday, 22 November 2010. I recounted
at the beginning of this book that, on that morning, Bauman heard and
rejected an application by the CBC to video-broadcast the proceedings.
e balance of the week would be consumed with openi ng statements, led
o by the Attorneys General and their a llies.
e crowd in Courtroom 55 would thin as the days progressed (trials
are never quite as exciting as we are led to believe), but the level of public
interest nevertheless remained very h igh, and details of the opening state-
ments were reported in all the major media from local papers to the BBC.
My opening was by far the longest, because the Attorney General
had “carriage” of the reference and I needed to explain the legal basis
for the proceeding and a bit of the historical background of the case.
Bevan thought that we needed to confront head on the Attorney Gen-
eral’s reversal of position on the constitutionality of section 293. I had
taken her advice, and walked the Court through the evolution of thought
on the subject since the Attorney General had announced in 1992 that
the law could not withstand Char ter scrutiny. It was an opportunity to
show that, although we might start from the civil libertarian position and
hive o “good” from “bad” polygamy, the simple fact of the social harms
forced us to reconsider and rethink. is was an important point to make:
Macintosh, the amicus, was expected to counter our social harm evidence
by saying that we developed it just for this reference, that it was in fact an
afterthought. We had to show that we didn’t have a position in need of
evidence; we had a position that had been mandated by the evidence we
had developed. So, after outlining the Attorney General ’s 1992 and 2002
statements that the law was unconstitutional, I said:
A Cruel Arit hmetic: Inside the Case Against Polygamy
Yet before you now, the Attorney will be argu ing that the section is con-
stitutionally s ound, and that in fact res ort to redraft ing, reading dow n
or reading in is not necessar y. is represents and there is no way to
minimize t his a wholesale reversal of the At torney’s 1992 position.
e Court may legiti mately ask: why has this come ab out?
ere is no doubt that one reason is the evolution of Char ter jurispru-
dence, and in part icular the notion that the Charte r is a document that
does more than ensure the r ights of citizens aga inst the state, but bal-
ances important competi ng rights of various groups i n the equation.
at’s one reason.
But far more important in the a nalysis is the evolution of the Attorney’s
understanding of the ha rms associated with polygamy.
e opening statement set out the framework of our case and focused
on the question of polygamy’s harms and how we expected to prove them.
In the Attorney General’s theory, polygamy would inevitably lead to the
earlier sexualization of young girls and other social problems. ere were
a number of important themes that I wanted to leave in Bauman’s mind as
we went through the evidence.
In any litigation, one side or the other has the advantage of inertia (or,
to look at it more dynamically, of momentum). As wedded as we are to the
idea of the judge as impartial a rbiter, and as much as any judge struggles
to be open minded and fair, a lawyer would be foolish to ignore the start-
ing, or default, position of the Court. e law assigns various burdens of
proof to dierent issues, but there is an unwritten, overal l burden, based
on the judge’s basic views. Is the judge starting from the position that the
polygamy law is “bad,” or that it is “good”? Who wi ll bear the burden of
shifting him from the default stance?
Judges are by nature conservative, for good reasons. e natural in-
clination is to not make a decision that will have far-reaching and un-
known ramications. So among the rst things I sa id when my argument
had begun was this:
e challenger s urge the court to make Canada t he only Western nation
to decrimina lize polygamy.
I paused and then repeated this sentence for emphasis, and then
moved on to describe the challenge and our position. I summarized the
central issues as three: pur pose, harm, and interpretation, but focused the
bulk of my opening submissions on what we expected to show of harm. In
our view, the harms from polygamy were universal, and Bountifu l served
as a useful exemplar of what would happen if polyga my were to take o in
Trial Diary
a given society. Because, I said, the thi ngs we saw at Bountiful — the tight
constraints on girls and women, the sexual targeting of adolescents, the
lost boy phenomenon were not just random associations with polygamy;
they were the consequences of it. I said:
e Court wi ll hear from the ch allengers th at, if there are problems at
Bountiful , they are problems arising from the insula r, rigid, patriarchal,
inegalitar ian and isolated community. ey will even su ggest that crim-
inalization itself causes, or at least exacerbates, these incl inations. ey
will say we don’t need to worr y about harmfu l polygamy tak ing root
elsewhere in Canada bec ause it only arises in t his kind of environment,
and how many Bountifu ls can there be? But this misses the point.
As a matter of logic, science, a nd as a historical fact , one conclusion
clearly emerges:
Bountiful d id not create polygamy; polygamy created Bountif ul.
Deb Strachan opened Canada’s submissions after me. She spent some
time explaining Canada’s interpretation of section 293, an interpretation
which I thought was strained but from which Canada simply could not
be moved. In their view, “polygamy” in the rst subsect ion of 293 meant
only multiple marriages that were lega l where they originated, while “con-
jugal union” in the second subsection referred to marriage-like relation-
ships but nevertheless ones that still requ ired a ceremony or formalization
of some sort. By their denition, the Mormons of 1890, Blackmore and
Oler, and many, if not most, of the Muslim men with more than one wife
were not practising polygamy under the Criminal Code. I could not see
how the denition could be sustained, even on the wording of the Code
itself, which seemed to make clear that the sanction applied regardless of
whether there had been any rite or ceremony, and regardless of whether
the polygamy or conjugal union was recognized by law. But I had by then
learned that Canada’s system of litigation supervision was so c umbersome
(each position taken had to be approved by the legal team, two commit-
tees, and sometimes by ocials at the top of the justice department and
government) that, at this late stage, resistance, as they say on Star Trek,
would be futile.
After our “all ied” participants had each given their brief openings,
the amicus began his, making the argument we had been anticipating
the argument that, were we in his position, we would have made. is
was followed by those Interested Persons (IPs) aligned against section 293.
By noon ursday, we were done the openings.
e media coverage that week was extensive. As is usual for a govern-
ment lawyer, I declined to give any interv iews, and the Attorney General

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