We were up early this morning and had a brisk quick walk to the BC Supreme Court building. We were quite a bit early but I wanted to be able to find the correct court room and have a seat. It was interesting to watch the various factions enter the court room. One of the other CPAA members was able to pick out familiar faces and identify people for me. Daphne Brahmn approached me and said that she'd received my email and would correct some errors in a recent article. And yes, I thanked her.
When Justice Bauman entered the room you could feel a ripple of excitement pass through the courtroom of some 150 people. The huge number of lawyers present caused them to have to seat a few lawyers in the jury benches. Justice Bauman spoke about how historic this reference question case is and that we are on a journey together into new territory.
The morning was spent hearing the lawyer for the CBC present his application to have two internet cameras set up in the court for a live feed of the proceedings with two regular cameras and operators to be used sporadically. This would require four to six hours of downtime for the court in order to set it up. The CBC also requested a change allowing them to film interviews in the corridors of the court house.
There is a directive (PD 123) in place since 2002 which is a strict policy about media access to the court room and media coverage. This application of the CBC was to seek to set that policy aside as this is a matter of tremendous public interest and their was a desire for television media to be able to report whatever is reported by other forms of media. Consent of witnesses to being televised was discussed and Justice
Bauman asked about delayed broadcasting and having his legal representative review the footage before its release.
Justice Bauman then heard from the various parties and found that the AG of Canada, West Coast LEAF, CCRC were opposed to televising the proceeding and the BC AG, the Amicus and the FLDS had reservations but most others were willing to consent or took no stand on the issue.
The BC AG said that personal witnesses should not be on camera without their expressed consent and that he felt that the video clips of testimony that have been uploaded to the internet should be ordered taken down. He suggested that their might be an invitation to television media to apply to film the closing statements of this case where evidence would be summarized and identities protected. He indicated that the schedule of some 36 witnesses and experts was locked in for timing and that a shift in this schedule to allow for installation of cameras at this late date of the case would not be optimum.
The Amicus did not object to a shared feed of opening and closing arguments but witnesses should have to provide approval individually with no burden of proof on them. As the CBC's submission came in on Friday having had months to gather this proposal, it was not acceptable and it should not be allowed to throw off the schedule of witnesses as set out and agreed upon by the legal representation of all the parties. The Amicus indicated that the issue of witnesses needing approval would take 3 or 4 days of court time which is simply not possible. This viewpoint was echoed by the lawyer for the BC Civil Liberties Association.
Canadians for Freedom of Expression's lawyer said that their viewpoint was that if someone sitting in the court room could see and hear the evidence or presentation then the televised version should be accessible to those unable to be in the court room.
West Coast LEAF's lawyer was very impassioned and said that the "Dajeuner-Mentach test" (can anyone define that reference?) did not apply because the media was seeking an expanded coverage not a lifting of a publication ban. She felt that oral testimony of witnesses should not be televised and she sited an Ontario decision indicating it would create a chilling effect on other proceedings. She said that live broadcasting was unacceptable as this court has no control of what happens in cyberspace. She expressed concern that errors may be made releasing names or comments identifying witnesses and those errors cannot be corrected with a live internet feed. These sentiments were echoed by the lawyer for CCRC and he referred to the UN Convention on Rights of the Child article 3.1 where a consideration was whether it was in the best interest of a child to proceed. He said an error or misspoken word might put a child at risk.
The lawyer for the FLDS expressed concern for his witnesses and their ability to remain anonymous while taking the stand or just sitting in the court room awaiting their time to testify and that some processes would have to be put in place.
The AG for Canada's lawyer said that she opposed the whole CBC application with exception to access to exhibits. A similar case is currently before the Supreme Court of Canada (CBC vs AG of Quebec) and the decision is pending.
We adjourned for lunch and upon our return Justice Bauman rendered his decision. He said that the CBC's application amounted to a last minute request to revisit and revise a policy established in 2002 and raised some very great privacy issues. He was unwilling to open up a policy debate for a submission that appeared on the eve of this case. He denied the CBC access to televise the proceedings but indicated that they may reapply to televise the closing statements. Their access to exhibits is same as is current at the discretion of the parties and he will consider their request for hallway interviews and advise them of his decision.
The BC AG spent the remainder of the afternoon expansively presenting his opening statement. There have been six reported prosecutions under this law since 1892. Most of these were actually adultery cases but one was Bearshinbone who was a First Nations man with several wives. All of these cases were acquitted. In 1982 the acceptance of the Charter of Rights and Freedoms brought many calls to revisit this law. In the late 1980's complaints began to filter out of Bountiful and investigations began. In 1992 the BC AG decided that prosecution was not justified under Section 1 of the Charter and asked the federal government to amend the law. The federal government refused the request. In 2002, the BC AG again found that the law was not constitutional and asked the federal government to review the law with no results. In 2006 and 2007, Special Prosecutors were appointed and each found the law was not viable for prosecution and the BC AG referred it to the Court of Appeal with no results. In 2008, a third Special Prosecutor decided to prosecute Blackmore and Oler from the community of Bountiful under this law. In 2009, the court quashed the charges as an abuse of authority. The history of this law is frustrating for those seeking to remedy the alleged abuses occurring the FLDS community of Bountiful and I one could hear that frustration in the voice of the lawyer presenting this background information to the court.
The BC AG's position has three central issues: harm, purpose and interpretation.
Harm succinctly is the idea that polygamy itself is harmful. The idea that multiple women including young girls under the patriarchal influence of one man would be coerced to accept abusive harmful treatment and young men deprived of wives to keep them from a rampage of crime would also harm the community at large. He sites anthropological research that societies of partial polygamy practiced as polygynous households (MFF) being the standard, polyandry is "vanishingly rare" (FMM) and universally monogamous societies the exception. He equates a democratic society and lower crime rates with more monogamy being practiced.
Purpose is a reference to the designed purpose of this law. The BC AG indicates that the law is meant to deter and punish behaviour that is harmful to women and children, women's equality and the peace and order of the greater community. It has a secondary purpose of selective immigration, resolving succession, divorce, remarriage and distribution of benefits in non-monogamous unions as well as harmonizing Canadian policy with other nations. The BC AG is adamant that this purpose has not shifted from the original intent of the law.
Interpretation refers to the BC AG's sense that this law can be read down to be applicable only to polygynous marriages (MFF) where it is binding on any of its participants via a rite or ceremony. He feels that one cannot differentiate between polyamory in a MFF relationship and polygyny and thus would see it included under this law. FMM, MMM, and FFF relationships do not produce the same harms or if they do these are temporary relationships and not binding in the same way to create the noted harms.
Presentations of Opening Statements of the Parties will continue tomorrow.
It has been most interesting to watch the workings of this court and see the interaction of the various participants in the court room as well as behind the scenes. Impressive to observe the wheels of justice grinding along.