Emory Law Journal


In the fall of 2010 and the spring of 2011, the Chief Justice of the Supreme Court of British Columbia presided over an unprecedented proceeding in Canadian legal history¿a ¿reference¿ hearing conducted at the trial court level into the constitutionality of Canada¿s criminal prohibition of polygamy. The authors are legal counsel at the Department of Justice and were part of the legal team that successfully defended the constitutionality of the prohibition on behalf of the Attorney General of Canada. This Essay discusses various aspects of the litigation, including the uniqueness of the proceeding, the voluminous evidentiary record it generated, the positions taken by the primary participants, and the Chief Justice¿s decision. The record before the Chief Justice provided an unparalleled overview of the impact of polygamy on individuals, communities, and nation-states and led to his ultimate conclusion that polygamy, as a marital institution, is inherently harmful.