A B.C. Supreme Court judge has turned down a CBC application to televise proceedings at a hearing to determine the constitutional validity of Canada's polygamy law.
Before opening statements from the Crown began Monday in Vancouver, the court heard an application led by CBC lawyer Daniel Henry calling for the right to broadcast the proceedings on the internet, radio and TV, which would be a first for a B.C. court hearing.
But Justice Robert Bauman turned down the request, citing the lack of consent from the attorney general of Canada — even though the attorney general of B.C. had agreed to allow the CBC to provide pool coverage for all Canadian broadcasters who were interested.
Opening arguments were expected to begin once Bauman made his ruling. At issue in the hearing is whether Canada's 1890 law against polygamy violates guarantees to freedom of religion and association in the Charter of Rights and Freedoms.
A team of federal and provincial prosecutors will argue that the law does not violate Canada's charter, while a legal team called the Amicus, meaning friend of the court, has been appointed to argue against the government's case.
Thirty-six witnesses, including some women in polygamous relationships, are scheduled to testify — in some cases behind screens to shield their identity from spectators in the court.
In addition, several groups of interested parties are also represented at the hearing, which is scheduled to last until Jan. 31, 2011.
The province's attorney general has asked the chief justice to rule on two questions. The first question is whether Canada's law against polygamy violates the religious protections in the charter.
The second question — if the court rules the law is constitutionally valid — is whether all polygamy is illegal, or just unions involving minors or exploitation?
Exploitation at issue
The West Coast Legal Action Fund's lawyer Janet Winteringham says a law against polygamy is vital to protect vulnerable women and children from exploitation.
“You need to read in an element of exploitation and if you do that, then the section is constitutional,” argues Winteringham.
But B.C. Civil Liberties Association lawyer Monique Pongracic-Speier disagrees.
“Consenting adults have the right — the Charter protected right — to form the families that they want to form,” she argues.
Pongracic-Speier says the law against polygamy is the wrong way to protect vulnerable women and minors.
“In some polygamous families, as in some monogamous families, there are abuses and there are difficulties, and it's those abuses or those difficulties that ought to be the target of legal intervention, not the form of relationship itself,” she says.
Bountiful prosecution dismissed
The hearing follows the province's unsuccessful attempt to prosecute the two leaders of a fundamentalist Mormon sect in Bountiful, a small community in the southeastern Interior of B.C.
Winston Blackmore and James Oler were charged in January 2009 with one count each of practising polygamy, but those charges were later thrown out when a judge ruled the province used an unfair process to find a prosecutor.
If the court strikes down the law, Canada would be the first country in the developed world to decriminalize polygamy.