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LANDMARK POLYGAMY CASE GEARING UP FOR NOVEMBER T welve organizations have been granted intervener/interested person status along with volumes of evi- dence that have been filed readying for the Nov. 22 opening of the landmark British Columbia Supreme Court reference case into constitutionality of polygamy under the Criminal Code. In October 2009, B.C.'s lieutenant gov- ernor in council referred two questions to the BCSC regarding s. 293 of the Criminal Code, which prohibits polygamy. The questions centre on whether the section is consistent with the Charter of Rights and Freedoms and what were the necessary elements of the offence under that section. Both B.C.'s and Canada's attorney generals are parties to the reference. "This is definitely a landmark case because it will test whether the polyga- my prohibition is constitutional and also because of the process," said legal director Kasari Govender of West Coast LEAF, an intervener in the case. West Coast LEAF has had a historical interest in polygamy and with Bountiful, B.C., the commu- nity that ignited the polygamy controversy when allegations of underaged girls enter- ing into marriage arrangements surfaced. The November case is considered unusual as it asks the Supreme Court to reference an issue before there has been a case involving parties to the issue. Govender says normally such cases would go to appeal court for resolution, while this case begins at the lower level. "It is definitely the first in B.C., there is no equivalent case," she says. The impact of the decision could be far-reaching. Govender says it is a crimi- nal law case but downstream could affect family law as well. Chief Justice Robert Bauman in his December reasons, outlining the back- ground and procedures for this November hearing, stated: "The AG Canada adds that the federal interests in this reference are substantially broader than Bountiful and engage a number of different strands of law and policy. The opinion rendered on this reference will have ramifications, for instance, for civil rights across such areas as pension and immigration law and policy." Individuals in polygamous relation- ships have entered numerous affidavits while interveners — from religious groups to the Canadian Polyamory Advocacy Association — filed evidence with the court in June. The CPAA maintains s. 293 is unconstitutional as it attempts to crimi- nalize "any kind of conjugal union with more than one person at the same time." George Macintosh, a Vancouver part- ner at Farris Vaughan Wills & Murphy LLP, has been appointed by the court as amicus curiae. Representatives from the federal and B.C. AG's departments will argue the Criminal Code section is not in violation of constitutional rights and if it is, they are justified. Macintosh will take the oppos- ing view. The B.C. AG's lead lawyer is Craig Jones, who hired Canadian scholar Joseph Henrich to author a 45-page report on polygamy filed in court recently. Govender says West Coast LEAF is one of 12 groups, including the B.C. Civil Liberties Association, that will make sub- missions to the court during the hearing. "We intend to argue that the polygamy provision of the Criminal Code is there to prevent the practice of polygamy where such practice is exploitative or abusive of women and children, and so should be interpreted to prohibit harmful conduct." — JEAN SORENSEN jean_sorensen@telus.net British Columbia Annual Criminal Practice 2011 Edition The leading guide to criminal procedure in British Columbia This authoritative guide equips you for court with annotations and case law examples of the Acts and Rules, guiding you quickly and efficiently through the criminal process in British Columbia. ORDER your copy today Perfectbound Published August each year • 704 pp. On subscription • $65 P/C 0168140999 One time purchase • $75 P/C 0168014999 ISSN 1206-9833 Get complete access to the current text of the: • Criminal Rules of the Supreme Court of British Columbia (annotated General Criminal Rules) – including updated procedures for practise in the Supreme Court of B.C. • Supreme Court Practice Directions and Notices to the Profession CL0910 Prices subject to change without notice, to applicable taxes and shipping & handling. For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. www. C ANADIAN Law ye rmag.com SEPTEMBER 2010 9 Ravi Hira, Q.C., The Honourable Mr. Justice W and The H onourable Judge Carol Baird Ellan illiam F. Ehrcke ... and more