VANCOUVER — The “historic” court case in British Columbia that could decide whether polygamy is legal in Canada is a matter of immense national importance and should be televised, a lawyer for the CBC argued Monday on the opening day of the hearings.
The provincial government has asked the B.C. Supreme Court whether the law against polygamy violates the guarantee of religious freedom in the Charter of Rights and Freedoms.
The court plans to spend the next two months hearing from about three dozen witnesses, including academic experts and current and former residents of Bountiful, B.C., the small polygamous commune that prompted the hearings in the first place. Some observers have suggested the case will likely end up at the Supreme Court of Canada.
The CBC has made an application to film the hearings for its television broadcasts and to stream the footage live to the Internet, a practice that remains exceedingly rare in Canadian courtrooms.
“You noted in the outset that this is a historic occasion,” Henry told Chief Justice Robert Bauman, who minutes earlier had described the case as a “historic reference.”
“It’s a matter of tremendous public interest and one only has to look at the array of counsel before you to recognize that this is a matter of tremendous public importance and public interest.”
The only court in the country that regularly broadcasts proceedings is the Supreme Court of Canada, while several others have allowed cameras on rare occasions with an application to the judge.
British Columbia created formal guidelines in 2001 outlining when television cameras should be allowed into the courtrooms and what restrictions should be placed upon them.
The introduction of that policy followed a case a year earlier involving a high-profile human smuggling trial, which was believed to be the first in the province’s history to permit cameras inside a courtroom. The presiding judge allowed cameras to capture video and still photographs of the lawyers during closing arguments.
Since that new policy was created, the polygamy case marks the first formal request.
Most of the lawyers involved in the case seemed receptive to allowing at least some parts of the hearings to be broadcast, although some wanted to see restrictions on witness testimony. The federal government objected to allowing the media to broadcast any part of the hearings.
The lawyer for British Columbia’s attorney general said the province supports open access to the courts and allowing some proceedings to be televised, but he said individual witnesses should be asked whether they consent to being filmed.
“We don’t believe that any witness’s personal testimony should be broadcast without their consent,” said Craig Jones.
George Macintosh, a government-appointed lawyer known as an amicus, who will argue against the polygamy laws, agreed with Jones that no witness should be forced to have their testimony televised and suggested each witness simply be asked what their preference is.
He also chided the CBC for making its application at the beginning of the case.
“The timing of this application of the CBC was ill-advised,” said Macintosh. “It came in on Friday. Surely, the CBC has known about this court proceeding for many months.”
One of the few parties to object entirely to the CBC’s application was the federal government, whose lawyer said it would be inappropriate for the court to grant the request until an ongoing case at the Supreme Court of Canada is settled.
That case, also brought forward by the CBC in Quebec, relates to whether TV cameras should be allowed to film in designated corridors in the courthouses, but not the courtrooms themselves. The Supreme Court of Canada heard the case earlier this year, but has yet to rule.
Government lawyer Deborah Strachan said it would be inappropriate to grant CBC’s request at the polygamy hearings until the country’s top court has issued its ruling in the Quebec case.
“The attorney general of Canada embraces the open court principle; however, the matter of broadcasting court proceedings is currently an issue before the Supreme Court of Canada,” said Strachan.
“Until the Supreme Court renders its decision, there should be no broadcasting of these proceedings.”
There are about a dozen interveners in the case, including religious groups, women’s rights organizations and one of the two Bountiful leaders who were originally charged with polygamy, and most said they were supportive of allowing TV cameras into the hearings.
Two of the interveners — the Canadian Coalition for the Rights of Children and the West Coast Women’s Legal Education and Action Fund — raised concerns that the identify of witnesses whose identifies are protected could inadvertently slip out if the hearings were streamed live on the Internet.
The polygamy case will focus heavily on the lives of the women and children who live in Bountiful, where two separate, divided factions practise a fundamentalist form of Mormonism that includes polygamy.
Winston Blackmore and James Oler were charged last year with one count each of practising polygamy, but the court threw out those changes on technical grounds.
Police have alleged Blackmore, who is boycotting the B.C. Supreme Court hearings, has at least 19 wives and more than 100 children. Oler was accused of having three wives.