Bountiful, Canada - The British Columbia Supreme Court begins hearing the case against multiple marriages Monday, spurred by repeated, failed efforts to prosecute members of a small commune of polygamists.
The case going before the B.C. high court stems from a series of attempts since the early 1990s to prosecute the leaders of Bountiful, a fundamentalist Mormon community of 1,000 near the province's U.S. border.
Last January, police charged the leaders of rival factions within the community -- Winston Blackmore and James Oler -- with one count each of polygamy.
When the charges were thrown out of court because of how the province chose its prosecutors, B.C. referred the issue to the high court.
Canada AM legal analyst Steven Skurka says this is a landmark case because, for the first time, "polygamy is in the prisoner's box."
"After 120 years, this law that has only been used sparingly is going to be put to the test: Does it pass constitutional muster?" Skurka said in an interview Monday, noting that while polygamy is undeniably illegal in Canada, it is virtually never prosecuted.
Lawyers representing the attorneys-general of Canada and British Columbia will argue that the current law should nevertheless be upheld in the interest of protecting women, children and society, while a court-appointed lawyer will argue the law violates Charter rights and should be struck down.
The case is also expected to see more than 30 witnesses including legal experts, sociologists, members of polygamist communities and people who practice polygamy outside of a religious context.
Oler, who prosecutors accused of having three wives, will be there alongside the breakaway Mormon sect of Fundamentalist Church of Jesus Christ of Latter Day Saints. Blackmore, who police alleged has 19 wives and more than 100 children, is boycotting after his request for special legal status was refused.
In the end, the court will be asked to decide whether the current polygamy law in Section 293 of the Criminal Code is consistent with the charter, and whether such relationships must involve a minor or some form of abuse before charges can be laid. But no matter what Chief Justice Robert Bauman rules, his decision is not legally binding on courts in the province or the rest of Canada.
Instead, Skurka explained the case has "persuasive effect" that could wind up in a series of appeals all the way to the Supreme Court of Canada.
"It's really going to take appellate courts and ultimately the most dominant appellate court to really make the binding decision," he said.
The case comes amid unprecedented mainstream interest in polygamy, seen in the popularity of the long-running HBO drama “Big Love,” or the recent TLC reality series “Sister Wives.”
Gauging how common polygamy is in reality, however, is much trickier. When asked how pervasive the practice is in Canadian society, Queen's University professor Bev Baines said, "We absolutely don't know."
"It's criminal so we can't do any research to find out," she explained in an interview Monday. "We're not going to ask somebody to 'fess up in the context of a research project and face the possibility of incarceration for up to five years."
Responding to such concerns in his courtroom, Chief Justice Bauman has ruled that witnesses from the Fundamentalist Church of Jesus Christ of Latter Day Saints can testify anonymously.
The hearing is expected to continue through January, 2011.