Charges have been laid. Debate in the media occupies page after page, both print and electronic. The issue will proceed into the courts in a process likely to take years to unfold.

Over the last few days, some of the questions most asked have been the following:

How long will it take until the Supreme Court has a decision? Well, this isn’t a television show so the odds are pretty good it will take more than an hour! If the case proceeds from the British Columbia Supreme Court through the Court of Appeal to the Supreme Court of Canada, Canadians should have a decision in five to seven years (perhaps as little as three if it is fast tracked at each stage). If there is a reference case from the federal government to short circuit the process then we could know before the fall, but the reference case isn’t likely. In August 2007 I commented on the potential for a provincial reference case to the B.C. Court of Appeal (one step shorter), now also not likely.

Is it possible that an argument of “religious freedom” under section 2(a) of the Canadian Charter of Rights and Freedoms will be successful in having section 293 (Polygamy) struck from the Criminal Code? Yes. The more important question is, “Is it likely?” The answer to that question requires a little more consideration.

No Charter right is absolute. All Charter rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (see section 1 of the Charter)

The case will hinge on two things.

First, the Crown must prove beyond a reasonable doubt that polygamy has taken place in violation of section 293. This will require producing evidence and witnesses. Presuming that the “marriages” in question have not been registered in B.C. – registration of marriage to more than one person is not supposed to happen under the structures in place to regulate marriages – it is likely that witness testimony, and perhaps some of the media interviews conducted by one of those charged if meeting the test to be introduced as evidence, will be required.

Second, the defence will argue that section 293 is in violation of “religious freedom” and is not a reasonable limit on that freedom, thus requiring the Crown to present additional evidence to support that section 293 is a reasonable limit on religious freedom.

The Evangelical Fellowship of Canada, among others, expressed during the same-sex marriage debate the concern that detaching marriage from the union of one man and one woman could potentially eliminate logical reasoning that would restrict the legal or civil institution (as distinct from the religious institution) of marriage to simply two people. See my 2007 webitorial for more on this. We won’t even get into issues around the federal government study on polygamy (which has recently disappeared from the Status of Women Canada website) completed prior to passing the Civil Marriage Act in 2005.

The 2007 decision of the Ontario Court of Appeal in the “Three Parents Case” intensified that concern as the court determined, in contradiction to the will of the Legislative Assembly of Ontario expressed in the Children’s Law Reform Act, that a child could have more than two legal parents. No limit was placed on the number of legal parents a child could have. Similar reasoning might apply to the number of partners in a marriage.

In 2005, the Supreme Court of Canada decided in the case of R v. Labaye that swingers’ clubs where married couples could exchange partners for sexual activities are legal. Will this reasoning extend to more permanent arrangements?

Legal scholars who have studied the issue, even those on faculty at the same university, are uncertain as to what the final result of this case will be.

It is also possible that the court could allow section 293 to stand as constitutional but create an exception based on religious freedom. This would potentially lead to further challenges of section 293 on the basis of section 15 of the Charter. Generally referred to as the “equality rights” section of the Charter, section 15 would require equal application of a religious freedom exception to others based on “race, national or ethnic origin, colour … sex, age or mental or physical disability” or sexual orientation (created as an additional section 15 ground by the Supreme Court of Canada as a result of decisions in Egan v. Canada and Vriend v. Alberta).

In essence, section 293 could stand but the court could make a decision allowing polygamy to be legal for just about everyone.

On the side of “reasonable limits in a free and democratic society,” the Supreme Court did decide in Reference re same-sex marriage (2004) that Parliament alone has the right to decide the legal definition of marriage in this country. Section 293 could be seen as Parliament engaging in affirming the limitation of the number of people engaged in a marriage to two, as stated in section 2 of the Civil Marriage Act.

The third question asked several times in recent days, as you might expect, is, “What’s your position on this case?”

That’s easier to answer. There is a clear biblical position on the issue of marriage. The Declaration of Marriage issued in November 2006 summarizes it well. The Declaration states that we – the representatives of several different Christian faith groups and those of other religions who signed the declaration – “understand marriage to be in its essence the union of a woman and a man.” One woman, one man.

The Evangelical community also has a clearly understood position on abuse, whether it be the “training” and underage marriage of many of the “wives” in Bountiful or the shunning and exhile of young male competitors to the alpha males. We endorse caring for the vulnerable.

It will be a longer watch than most television series survive, but we’ll have our eyes on this one. No doubt, so will you.

Don Hutchinson is Vice-President, Centre for Faith and Public Life and General Legal Counsel with The Evangelical Fellowship of Canada.

Related Article

Defence to Invoke Gay Marriage as Polygamy Trial Begins in B.C.

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