Building a case against Bountiful

When the polygamy reference case was up for examination in B.C., the David Asper Centre for Constitutional Rights wasn’t about to sit idly by

By Randi Chapnik Myers

First published in the Spring/Summer 2011 issue of Nexus.

When Becca McConchie wrote the LSAT, she figured the degree would come in handy in any career. “I didn’t know how much I would like practicing law,” says the University of Toronto law student, who knew her decision to try her hand at litigation was the right one when she found herself inside the British Columbia Supreme Court, helping to make history.

It all started last September when McConchie enrolled in the course “Clinical Legal Education: Constitutional Advocacy” held at the Faculty of Law’s David Asper Centre for Constitutional Rights. The centre’s legal clinic gives third-year students the chance to work on groundbreaking constitutional cases that invoke the Canadian Charter of Rights and Freedoms to promote social justice.

As it happened, the constitutionality of section 293 of the Criminal Code of Canada — which makes the practice of polygamy a crime — was up for examination at just that time. And when teacher Cheryl Milne, the Asper Centre’s executive director, stepped up to act as co-counsel in the case, she needed lots of help from her students.

Despite the law banning multiple marriages, the members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, the breakaway Mormon sect in the southeastern B.C. town known as Bountiful, are famous for their polygamous lifestyle. After the prosecution of two of the community’s leaders failed, the government set out to determine, once and for all, whether polygamy is a protected religious freedom or a crime.

In a unique move, the constitutional reference would be held in an open B.C. trial court before Chief Justice Robert Bauman, who would decide the case using a hybrid of affidavits and cross-examinations. To make matters even more exciting, the Asper Centre joined forces with the Canadian Coalition for the Rights of Children (CCRC), based in Ottawa, to intervene as interested parties.

Milne rallied in favour of the legislation on the grounds that the practice of polygamy violates children’s rights, and accordingly, a law prohibiting it is justified. On the other side, the court-appointed amicus curiae argued that the law undermines freedom of religion and should be struck down.

“Lifting the law against polygamy would violate Canada’s international obligations,” Milne says. Specifically, the Canadian Charter of Rights and Freedoms and the UN Convention on the Rights of the Child require Canada to protect children from the harms associated with polygamy.

“There has been a reluctance to intervene in Bountiful on the grounds of the religious freedom of adults at the expense of the rights of the children who live there,” Milne says. Not only has the funding of the independent school system failed to meet kids’ educational needs, but there is also undeniable evidence of sexual abuse of children within the community, she points out.

To help build the Asper Centre’s case, Milne selected five students to help sift through thousands of pages of evidence. In addition to summarizing vital statistics documenting the number of Bountiful high school graduates, the marriage ages for girls, teenage birth rates, and sexual exploitation of child brides, they also researched Canadian labour, marriage, and child welfare laws and international laws relating to polygamy.

Kathy Vandergrift, chair of the CCRC, was delighted with the students’ involvement. “They helped us to keep putting children’s rights on the agenda as the case moved forward,” she says. Although the detailed work — reviewing page after page to make sure that each reference to children was noted — could be tedious at times, it paid off.

“The B.C. government finally agreed to review the statistics, and as a result, we were able to table evidence of eight children trafficked,” Vandergrift says.

The most disturbing case was that of two 12-year-old girls who had been removed from Bountiful, shipped to Texas and married off to Warren Jeffs, the U.S. polygamist leader facing sexual exploitation charges. “This evidence was in the government’s hands back in 2008. It is shocking that despite the law, the rights of children in B.C. have not been protected,” Vandergrift says.

Reviewing the evidence was enlightening, McConchie says. “In law school, everything you learn is at arms length. But here, you’re not just hearing about the rights to freedom of expression and religion, you are reading affidavits, and seeing firsthand how these rights affect people.”

After the evidentiary stage of the proceedings, it was time for the courtroom drama, which coincided with the option of a practicum at the Asper Centre. Some of the students, including McConchie, Kathryn McGoldrick and Will Morrison, signed on and took turns flying to Vancouver with Milne to watch the action unfold.

McGoldrick was present for Milne’s cross-examination of Angela Campbell, a McGill University professor who was called by the amicus. “She had interviewed women in Bountiful and found some of them stated that they do in fact have some free choice regarding marriage, sexuality and reproduction,” McGoldrick says.

Campbell had submitted a qualitative study based on her interviews, but the government requested disclosure of her notes before crossexamination. The judge agreed, subject to a sealing order. To keep the women’s identities protected, only those cross-examining Campbell were privy to the transcriptions. Together, Milne and McGoldrick spent a full weekend digging through the notes, drumming up questions for Campbell. “It was an engaging process, but we had to maintain strict confidentiality of those documents,” Milne says.

The experience was eye-opening for McGoldrick. “I learned just how much time and effort goes into preparing a cross of an expert witness,” she says. “Because our position is protecting children’s rights, we had to really zero in on what we would ask to draw that out.” At the same time, it was a lesson in thoroughness, Milne says. “You never take a study at face value because what’s in the notes may not be reflected in the witness’ conclusion.”

Will Morrison will never forget the feeling of sitting in that packed courtroom. “The amount of human capital involved in a piece of litigation of this scale is enormous,” he says. He took notes as two witnesses testified, including Prof. Rebecca Cook, who holds the chair in international human rights law at U of T.

Called as an expert witness for the AG, Cook was examined on a report she co-authored in 2010, called State Obligations to Eliminate Polygyny under International Law, as well as the developments in human rights law since that time.

“International human rights deals with polygyny — one man marrying many wives — not polygamy, which refers to either spouse with multiple partners,” Cook explains. She testified that in the last decade, there has been a clear trend in international law toward limiting and prohibiting polygynous relationships in order to protect the equal rights of women in family life.

As examples, she cited the 2009 decision by the South African constitutional court that gives women in polygynous Muslim marriages the same inheritance rights as monogamous wives, and the 2007 Indonesian judgment that upheld the requirement for a man to obtain consent from his first wife in order to marry a second. In Canada and Australia, the immigration policy has recently changed, Cook says. Now, a polygynous man can immigrate with his first wife only, and must first show proof that he is legally divorced to all subsequent wives.

Testifying at such a high profile hearing was exciting, Cook says. While ethical walls prohibited her from discussing the case before she testified, she was eager to review the affidavits submitted by her colleagues once they formed part of the public record.

She particularly enjoyed the submissions of Professors Anver Emon and Mohammad Fadel, U of T law professors who are scholars in Islamic legal history. At the request of the amicus, they each provided overviews of polygamy in Islamic law and its practice among Muslims in Canada. Cook found their perspectives fascinating.

“The case is a jigsaw puzzle, and for a time, I just focused on my own little piece,” she says. But now that the law school has held two workshops featuring all of the U of T players, she sees that the polygamy question provides a valuable opportunity for discussion.

Even Milne and her students have swayed between the two sides. “There’s the issue of fundamental freedom of choice in a marital arrangement but then there are the negative impacts on children that accompany that choice,” Milne says.

“The issue brings up gut reactions,” McConchie says. “There are so many different litigation styles, so many ways to debate, and so many people affected.”

As for McGoldrick, she begins her clerkship at the B.C. Court of Appeal this September. Although she secretly hopes that the trial decision in the polygamy case will arrive at the appeal court while she is there, she knows that’s wishful thinking.

“This proceeding was a massive undertaking, with volumes of evidence, and so many sections of the Charter being invoked. There are many, many legal issues for the judge to review,” she says.

In the meantime, while Morrison heads to the Ontario Ministry of the Attorney General’s constitutional law branch for his articles, McConchie will join the criminal law group at Sack Goldblatt Mitchell LLP. She can hardly wait to wear her robes in court. “For me, this case wasn’t just about the law, but about its impact on different groups of people in the world,” she says. “I had no idea how exciting my career could be.”

Photography by Tanja Tiziana