In a shock judgement that is out of line with decades of legal opinion on the subject, British Columbia’s Chief Justice Robert Baumann today ruled that Canada’s polygamy ban was constitutional, except for under-18’s. While the judgement is puzzling on many levels, the restriction of legal polygamy to kids is a way of offering an effective amnesty to any under-18s wishing to leave such marriages. While it effectively allows under-18s to engage in polygamy, continuing to do so beyond the age of 18 would leave them in technical breach of the law.
As with many human rights cases, this smacks of a judge creating the law, rather than interpreting it, and an initial look at the judgement has revealed a number of errors – for example, the United Kingdom banned bigamy in 1604, not polygamy, and later case law, including the famous case of Hyde v Hyde and Woodmansee makes this clear. The judgement (see here) is however very long and detailed, as befits a case of this length and importance, so a full analysis will take some time. In the meantime it is likely that the case’s next stop will bethe Supreme Court of Canada.
The Globe and Mail including pdf text of the judgement.
Winnipeg Free Press, with speculation on the likelihood of prosecutions beginning in British Columbia