Untying the Blackmore case from the Polygamy Reference

By Beverley Baines March 19, 201819 March 2018

The recent ruling by the Supreme Court of British Columbia upholding the polygamy convictions of Winston Blackmore and James Oler raises three problematic questions, constitutionally speaking, about due process, the binding nature of reference opinions and the rules revisiting earlier decisions.

In 2011, the B.C. Supreme Court upheld Canada’s anti-polygamy laws in a much-publicized reference decision. In her ruling in  Blackmore, Justice Sheri Ann Donegan followed the opinion of then Chief Justice Richard Bauman in the Polygamy Reference. She viewed his opinion about the constitutionality of the polygamy prohibition as a binding judgment.  For the reasons discussed below, she should have untied her decision from his.

The first question raised by the Blackmore ruling is whether Justice Donegan adhered to due process when she raised the issue about the constitutionality of s. 293 of the Criminal Code banning polygamy. There is no indication in Justice Donegan’s otherwise detailed judgment that she gave the applicants, Winston Blackmore and James Oler, any notice of her intention to raise the issue of the constitutionality of section 293. Neither Mr. Blackmore or Mr. Oler argued this issue. Justice Donegan confirmed that “Mr. Blackmore specifically does not challenge the constitutionality of the polygamy provision” (emphasis in original).

Instead Mr. Blackmore raised a different constitutional issue, claiming that prosecuting and punishing him infringed his religious freedom and freedom of expression under the Canadian Charter of Rights and Freedoms. He could have analogized, and perhaps his lawyer did, the Supreme Court of Canada’s Little Sisters ruling in 2000. In it, the court applied the Charter to the way officials had administered the pornography provision in the customs law to impede the importation of gay and lesbian books. The court also distinguished the bookstore’s Charter challenge to the administration of the customs law from challenging the law’s constitutionality. It follows from Little Sisters that Mr. Blackmore’s Charter challenge to the administration of the polygamy provision also differs from challenging the constitutionality of s. 293. When Justice Donegan raised the latter issue, due process required her to give him notice and the opportunity to reply. Failing to provide due process, if this is what transpired, calls into question the fairness of Justice Donegan’s consideration of the issue of the constitutionality of section 293.

The second question raised is whether a statute, in this case BC’s Constitutional Question Act, authorizes judges to treat reference opinions as binding judgments. Justice Donegan’s affirmative response was based on her interpretation of two provisions of the Act. Section 2 provides that in a reference case a court must give its opinion to the government “in the manner of a judgment in an ordinary action” and section 6 provides for the appeal of a reference opinion “in the manner of a judgment in an ordinary action”.

 

Justice Donegan interpreted this statutory language, “opinion … in the manner of a judgment”, as empowering the judiciary in British Columbia to view reference opinions as judgments that are binding. However, her view is not consistent with the constitutional principle of the separation of powers between the judiciary and the executive. According to this principle, judges who decide actual cases perform judicial functions and must issue judgments that become binding if not appealed, whereas judges who decide reference cases perform non-judicial functions and the opinions they issue are advisory. “The rendering of advisory opinions”, constitutional law scholar Peter W. Hogg opined, “is traditionally an ‘executive’ function”.

The Supreme Court of Canada recognized the separation of powers (a.k.a. constitutionalism) as an unwritten but foundational principle of the Canadian Constitution in the 1998 Reference re Secession of Quebec. As such, section 52 of the Constitution Act, 1982, which provides that the “Constitution of Canada is the supreme law of Canada”, ascribes it priority over statutory authority. By relying on statutory rather than constitutional authority, Justice Donegan’s decision to treat reference opinions as binding judgements should not survive an appeal.

Third, did Justice Donegan correctly apply the rules about re-opening cases when she followed Chief Justice Bauman’s decision to uphold the constitutionality of the polygamy prohibition? The answer depends on a close reading of these rules as they are set out in the Supreme Court of Canada’s Bedford ruling, which struck down Canada’s anti-prostitution laws in 2013. In Bedford, Chief Justice Beverley McLachlin crystallized two rules about revisiting earlier decisions, viz: “when a new legal issue is raised, or if there is a significant change in the circumstances or the evidence.”

Justice Donegan correctly applied these rules to the Polygamy Reference, finding no new legal issue and no significant change in circumstances or evidence. However, she did not pose the preliminary question – do the Bedford rules even apply to the Polygamy Reference? In Bedford, Chief Justice McLachlin had imposed two preconditions on applying the rules about re-opening cases: “stare decisis … cannot require a court to uphold a law which is unconstitutional”; and “a lower court is not entitled to ignore binding precedent”. Where the un/constitutionality of a law is the issue, these preconditions collapse into whether the earlier case constituted a binding precedent. In Bedford, Chief Justice McLachlin decided that the trial judge was bound by the earlier case, the 1990 Prostitution Reference, but that it was not necessary to determine whether the court could depart from it.

Labelling the constraint on trial judges as “the ‘vertical’ question” and, on the court as “the ‘horizontal’ question”, Justice Donegan resolved the latter question by applying a principle known in the British Columbia courts as “judicial comity”. Expressed loosely this principle promotes judicial solidarity (and less work) at the expense of the parties who are directed to appeal if they are unhappy. Of course, there was no one to appeal the Polygamy Reference because British Columbia and Canada had colluded and won; and there is little likelihood of an appeal in Blackmore because of costs. Access to appellate justice is expensive.

The foregoing are questions an appellate court might answer but to what purpose? A successful appeal, were it not such a remote possibility in British Columbia, could return the issue of the constitutionality of s. 293 to the trial level. Central to this constitutionality issue is whether the harm-to-women-and-children justification earlier advanced by the British Columbia and Canadian attorneys general is evidence-based. Understanding how this justification is anything but patriarchal stereotyping is difficult in the absence of testimony by women currently living in polygamous relationships in Bountiful and elsewhere in Canada. Without immunity from criminal prosecution, however, these women should not testify. They should not risk being charged with the crime of polygamy, particularly if their testimony does not find favour with the attorneys general.

Beverley Baines is a Professor at the Faculty of Law at Queen’s University. The opinions expressed here are the author's own.

 

 

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