IN THE SUPREME COURT OF BRITISH COLUMBIA
Reference re: Criminal Code, s. 293,
2010 BCSC 517
IN THE MATTER OF:
THE CONSTITUTIONAL QUESTION ACT, R.S.B.C. 1986, C. 68
AND IN THE MATTER OF:
the canadian charter of rights and freedoms
AND IN THE MATTER OF:
A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL
SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22, 2009
CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THE
CRIMINAL CODE OF CANADA, R.S.C. 1985, C. C-46
Before: The Honourable Chief Justice Bauman
Reasons for Ruling
Counsel for the Attorney General of British Columbia:
Craig E. Jones, Veronica L. Jackson,
Counsel for the Attorney General of Canada:
Deborah J. Strachan,
R. Craig Cameron
Counsel for Winston Kaye Blackmore:
Joseph J.M. Arvay, Q.C.,
Alison M. Latimer
Counsel for James Marion Oler and Fundamentalist Church of Jesus Christ of Latter Day Saints:
Robert V. Wickett
Andrew Scarth, (A/S)
Counsel for the Reference Amicus:
George K. Macintosh, Q.C.,
Place and Date of Hearing:
26 March 2010
Place and Date of Judgment:
20 April 2010
 Winston Blackmore, on his own behalf and on behalf of his congregation, applies to be added as a party to these Reference proceedings or, in the alternative, as an interested person. Mr. Blackmore also seeks an order for advance costs (at the expense of the Province and Canada) to allow him to retain and instruct counsel. The Reference Amicus supports Mr. Blackmore’s applications. The Attorney General for British Columbia (the “AG BC”) and the Attorney General for Canada (the “AG Canada”) oppose the applications.
 By Order in Council dated 22 October 2009, the Lieutenant Governor in Council referred two questions to this Court for hearing and consideration pursuant to the Constitutional Question Act, R.S.B.C. 1996, c. 68 (the “CQA”). The first concerns the constitutionality of s. 293 of the Criminal Code, the criminal prohibition against polygamy. The second relates to the necessary elements of the offence proscribed by that provision.
 The current parties to these proceedings are the AG BC, the AG Canada and the Reference Amicus. The Attorneys General will take the position that s. 293 is constitutional. The Reference Amicus, who is publically funded, was appointed with a broad mandate to advance the case in opposition.
 Twelve interested persons will also participate in the Reference pursuant to s. 5 of the CQA, on terms and conditions as follows:
(A) Each Interested Person may:
(i) adduce evidence in the form of affidavits, expert reports, and “Brandeis brief” materials, in accordance with the schedule directed by the Court;
(ii) make written submissions at the hearing of the Reference, of a length to be determined by the Court;
(iii) make oral submissions at the hearing of the Reference, of a length to be determined by the Court; and
(iv) participate in the evidentiary phase of the hearing if, and to the extent, permitted by further direction of the Court.
(B) Each Interested Person will:
(i) ensure that its evidence and submissions are not unnecessarily duplicative of the Parties’ or other Interested Persons;
(ii) abide by the schedule established by the Court in consultation with the Parties; and
(iii) provide its evidence to other participants in electronic form via email attachment, and accept service and delivery of other participants’ materials in the same manner.
(C) No costs will be awarded in favour of or against Interested Persons.
 Mr. Blackmore also applied to participate in these proceedings. He did not consent to these terms, and has brought the present application for party status.
 The interested persons represent a range of interests. Some take the position that s. 293 is constitutional; others will argue that the provision is unconstitutional either in whole or in part. Among those who have indicated their intent to argue that s. 293 is unconstitutional are the Fundamentalist Church of Jesus Christ of Latter Day Saints (the “FLDS”) and James Oler in his capacity as Bishop of the FLDS. This is also the position of Mr. Blackmore.
 The residents of the community of Bountiful follow the fundamentals of the Mormon faith. Following a split in 2002, two groups now live in the community, each comprising approximately one half of its population. Mr. Blackmore is bishop for one group, and Mr. Oler, the other. Mr. Blackmore has deposed that his congregation is significantly different from that of Mr. Oler because his (Mr. Blackmore’s) group follows the teachings of the founder of the Mormon faith, Joseph Smith, while Mr. Oler’s group follows the new teachings of their prophet, Warren Jeffs.
Positions of the Parties
 Mr. Blackmore and Mr. Oler have been the only persons charged under s. 293 in recent decades. Mr. Blackmore submits that the quashing of those charges by this Court led directly to the present proceedings, an unprecedented reference to the Supreme Court, with Bountiful as its clear target. In these exceptional circumstances, Mr. Blackmore says that the interests of justice mandate that he be granted party standing and advance costs.
 In arguing for party status, Mr. Blackmore submits that the AG BC has initiated these proceedings with a view to testing s. 293 for the benefit of the public, and has selected him and his congregation against which to test it. That Bountiful is the AG BC’s target, he says, is apparent from its “Statement of Position on the Constitutional Questions Referred and Preliminary Summary of Facts Asserted”. It is also evident from their applications for standing that a number of the interested persons similarly intend to target Bountiful. While styled as a reference, Mr. Blackmore argues that for all intents and purposes, he and his congregation will be on trial.
 Mr. Blackmore further submits that he and his congregation clearly have a direct interest in this Reference, as its outcome will determine their constitutional rights in a very real way. As this interest is as important as those of the parties to this proceeding, he should be accorded no lesser participatory rights.
 Finally, Mr. Blackmore says that since Bountiful is the focus of these proceedings, the most important evidence the Court will hear will be from that community. Without this factual matrix, it is entirely possible that the Court will lack the requisite evidentiary foundation to decide the Reference questions. Although Mr. Oler and his congregation are participating as interested persons, Mr. Blackmore says that there has been a split in the FLDS church, and that it should not be assumed that both take the same approach to the issues in question. Accordingly, his participation is necessary to ensure that all matters in the proceeding are effectively adjudicated upon, and he should be added as a party on this basis.
 Mr. Blackmore seeks party standing not only for the participatory and evidentiary rights that flow from that status, but also as a basis for an award of advance costs. In this regard, he submits that the Court should exercise its discretion to award him costs as his is the exceptional case of last resort contemplated by British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71,  3 S.C.R. 371 [Okanagan Indian Band] and Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2,  1 S.C.R. 38 [Little Sisters].
 Briefly, Mr. Blackmore argues that the AG BC has initiated this Reference to test the constitutionality of s. 293 against him and his congregation. The evidence that they will bring to the proceedings will be critical to the ability of the Reference Amicus to properly present his case and the Court to answer the questions posed. However, Mr. Blackmore submits that he genuinely cannot afford to participate in the Reference, and he has filed affidavit evidence setting out his financial circumstances. Without a costs order to enable him to retain and instruct counsel of his choice, Mr. Blackmore will not participate, as he deposes in an affidavit sworn 5 March 2010:
While I understand that the Court has appointed a lawyer, an Amicus, to argue that the polygamy law is unconstitutional, I am not willing to allow the Amicus to access myself or my Congregation for the purpose of obtaining the evidence he might need to challenge the law. I have spoken with most of the people in my Congregation and they are of the same view. Given my past experience with the government and the police, which I consider to involve religious persecution and the continued prospect of future criminal proceedings, neither I nor my Congregation are willing to be represented in the proceedings except by a lawyer of our choice. I have an established relationship with Mr. Arvay and trust him to represent my and my Congregation’s best interests in this matter. I will not participate in these proceedings, nor will my Congregation, without an order for funding.
 Mr. Blackmore further argues that there is no realistic option for testing the constitutionality of s. 293 outside of this Reference, and that the claim to be adjudicated is prima facie meritorious. The issues raised are of public importance, as reflected in the AG BC’s decision to refer them to the Court, and they clearly transcend the individual interests of Mr. Blackmore and his congregation.
 The Reference Amicus supports Mr. Blackmore’s costs application, and submits that his position as Reference Amicus will be prejudiced should the application not be granted.
 The Reference Amicus agrees with Mr. Blackmore that the focus of these proceedings is quite plainly on the Bountiful communities. Accordingly, as leaders and representatives of their communities, Mr. Blackmore and Mr. Oler have access to the most central evidence in the Reference. The Reference Amicus has not spoken with Mr. Blackmore but accepts his sworn statement that he will not meet with him. Without Mr. Blackmore’s participation, he says, important evidence will be unavailable to the Court. The Reference Amicus submits that while Mr. Blackmore’s position is similar to that of Mr. Oler, their two communities have significant differences and it is not sufficient to proceed solely on Mr. Oler’s participation. Fairness and the completeness of this Reference require the full participation of Mr. Blackmore, as well.
 The AG BC disputes the characterization of these proceedings as being about Bountiful. He says that the general thrust of his case will be that expert evidence from a range of disciplines will demonstrate that polygamy (in the sense of polygyny, one man with multiple wives) creates a number of undesirable social effects. These include pressure for the recruitment of increasingly younger women and girls to be wives, and a corresponding cohort of men with no prospects of marriage, with the attendant consequences. The AG BC says that while there may be considerable evidence from FLDS communities because they are exemplars of the points he seeks to prove, such communities are by no means limited to Bountiful. Further, the AG BC anticipates that much of the evidence will come from outside the FLDS in any event.
 The AG BC opposes the granting of party status to Mr. Blackmore. He submits that since a reference is not an adversarial proceeding, there will be no outcome between the parties by which Mr. Blackmore can be directly affected. While he may potentially be affected by proceedings that might flow from the Reference, such as a subsequent criminal prosecution, Rule 15(5)(a) of the Rules of Court does not capture that type of indirect or consequential interest. Further, it is not necessary for Mr. Blackmore to be added as a party, as the Reference will proceed with or without him. The involvement of the Reference Amicus and interested persons who will seek to challenge the constitutionality of s. 293 will ensure that the case in opposition to that of the Attorneys General will be fully presented. Mr. Oler’s participation as an interested person is particularly notable in this regard. Despite assertions of differences between the communities of Mr. Oler and Mr. Blackmore, no evidence has been led as to what these differences are with respect to the central issue of polygamy. Finally, the AG BC submits that it would not be just and convenient that Mr. Blackmore be added as a party.
 The AG BC does not oppose the participation of Mr. Blackmore as an interested person on the same terms and conditions as the other interested persons. He does submit, however, that there is no basis to confer upon him greater participatory rights than those others.
 The AG Canada endorses the AG BC’s position with respect to Mr. Blackmore’s party status.
 Whether Mr. Blackmore participates as a party or an interested person, both Attorneys General oppose an award of advance costs.
 The Attorneys General submit that advance costs are an exceptional award, not to be lightly granted. They are reserved for those rare and exceptional cases which would result in a serious injustice to not only the individual, but the public interest if they could not proceed. In the distinct context of a reference, the bar is set even higher. Such proceedings do not involve a lis between the parties, nor do they engage the court in a disposition of rights. Costs are generally not awarded, even after the event. The Attorneys General submit that the Court should exercise great caution in extending an already extraordinary remedy to the unique context of a reference.
 The Attorneys General further argue that Mr. Blackmore does not satisfy the stringent requirements for an advance costs order, in any event. They submit, inter alia, that by initiating this Reference, the AG BC has removed the focus from Mr. Blackmore and his congregation, and placed it squarely on the constitutionality of s. 293 in all contexts and on the practice of polygamy in general. The Reference will thus proceed whether or not Mr. Blackmore receives costs. As already noted, even if Mr. Blackmore does not participate, others, including the Reference Amicus and various interested persons, will adduce a sufficient body of evidence and ensure that the constitutionality of s. 293 is thoroughly canvassed. Keeping in mind Mr. Oler’s participation as an interested person, it cannot be said that the potential absence of Mr. Blackmore and his congregation will result in an injustice to the public at large. Further, an advance costs award is a last resort, and Mr. Blackmore has not demonstrated that he has explored all other options. If his evidence is as essential as he asserts, then he and his congregation can work with the Reference Amicus to ensure that it is properly presented and their interests are protected. Alternatively, Mr. Blackmore can participate without counsel or limit the involvement of his counsel to that which is absolutely necessary in the context of this Reference. Finally, the Attorneys General contend that Mr. Blackmore has failed to provide sufficient evidence to demonstrate that he and his congregation are impecunious and unable to raise the funds necessary to take part in the Reference on a limited basis.
 All the parties proceeded on the assumption that Rule 15 applies to these proceedings. The CQA is silent on the issue of the applicability of the Rules of Court to reference proceedings. Arguably, ss. 3 - 5 of the CQA occupy the field of regulation of the “right to be heard” in such proceedings.
 Rule 1 (4) provides:
These rules govern every proceeding in the Supreme Court except where an enactment otherwise provides.
 “Proceeding”, in turn, is defined in Rule 1 (8):
"proceeding" means an action, suit, cause, matter, stated case under Rule 33A, appeal or originating application;
 That definition includes a “matter” and a reference is just that (see s. 1 of the CQA). Finding no provision in the CQA which “otherwise provides”, I conclude that the Rules of Court, and in particular Rule 15 governing the addition of parties, apply to this Reference.
 The relevant portions of Rule 15 read:
15(5)(a) At any stage of a proceeding, the court on application by any person may
(ii) order that a person, who ought to have been joined as a party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon, be added or substituted as a party, and
(iii) order that a person be added as a party where there may exist, between the person and any party to the proceeding, a question or issue relating to or connected
(A) with any relief claimed in the proceeding, or
(B) with the subject matter of the proceeding,
which in the opinion of the court it would be just and convenient to determine as between the person and that party.
 Consistent with the overarching consideration in the application of any rule, the prime consideration in determining whether a person should be a party to litigation is the interests of justice: Kitimat (District) v. British Columbia (Minister of Energy & Mines) 61 B.C.L.R. (4th) 295, 2006 BCCA 562, [Kitimat], at para. 25. The court’s discretion to add parties under Rule 15 should be exercised generously to allow the effective determination of the issues, without delay, inconvenience or separate trials: Ipsos S.A. v. Reid, 2005 BCSC 1114, 43 C.C.E.L. (3d) 117.
 Rule 15(5)(a)(ii) applies in two specific circumstances. The first is where a person “ought to have been joined as a party”. This refers to situations where joining the person is a necessity. As Saunders, J.A. recognized in Kitimat, at para. 29, the provision may be broader and extend to include situations in which joining the person may be more than mere convenience but less than a necessity. The second circumstance is where a person’s “participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon”.
 Rule 15(5)(a)(iii) involves a discretion which is to be exercised on the basis of whether it is just and convenient to join the person where there may exist between the person and any party “a question or issue relating to or connected with, any relief claimed ... or with the subject matter of the proceeding”. In determining whether it is just and convenient, the Court must consider, inter alia, any delay in bringing the application and the effect that adding a party may have on the proceeding generally: Michaels v. Dube, 2007 BCSC 747.
 Whether under Rule 15(5)(a)(ii) or (iii), the person seeking to be added must have a direct interest in the precise outcome of the particular action between the particular parties; it is not sufficient that the person may be affected by the answer to a legal question in dispute: Canadian Labour Congress v. Bhindi (1985), 61 B.C.L.R. 85 (C.A.) at pp. 93-94 [Bhindi]; B.C. Fisheries Survival Coalition v. Canada,  B.C.J. No. 660 (B.C.) at paras. 9-10, citing B.C. Federation of Labour v. British Columbia (Workers Compensation Board) (1988), 29 B.C.L.R. (2d) 325 (S.C.).
 In my view, this application must be determined on the basis of this latter, overarching consideration.
 The “precise outcome” of this Reference will be this Court’s answers to the two questions posed by the Lieutenant Governor in Council.
 While Mr. Blackmore and his congregation may be affected by that outcome, it cannot be said that they have a direct interest in it as that notion is properly understood.
 Mr. Blackmore and his congregation are not in the same position, for example, as Alcan was in Kitimat where the relief sought by the District included declarations and orders that would render invalid Provincial instruments in Alcan’s favour and restrict the range of uses to which Alcan could put the power it generated.
 Rather, the outcome of the Reference may possibly, but not necessarily, affect Mr. Blackmore and his followers in future proceedings which, again not necessarily, may be brought by the Crown under s. 293 of the Criminal Code.
 Mr. Blackmore’s position is more akin to that of the appellant labour association which unsuccessfully sought party status in Bhindi where the constitutional validity of a section of the Labour Code, R.S.B.C. 1979, c. 212, was in issue. The majority stated (at pp. 93-94):
Before dealing with the arguments made by counsel, I wish first to deal with the procedural aspects relating to the addition of “parties” or intervenors”. In my opinion, R. 15 of the Supreme Court Rules is not applicable to the case on appeal. It is only applicable to cases where the party sought to be added has a direct interest in the outcome of the particular action between the particular parties. It is not intended to cover cases where a person can be granted standing on the basis of being affected by the answer to the legal question in dispute, rather than being affected by the precise outcome between the parties.
 In my view, in light of Mr. Blackmore’s lack of a direct interest in the outcome of this proceeding, it cannot be said that he ought to have been joined at the outset of the Reference; nor can it be said that his participation “is necessary to ensure that the matters in the proceeding may be effectually adjudicated upon”. It is undoubtedly the case that Mr. Blackmore’s participation would help in developing the record which will assist the Court in answering the questions on the Reference, but that participation is not “necessary” in the sense meant by Rule 15(5)(a)(ii) anymore than is the participation of the interested persons, including Mr. Oler and his congregation.
 It is also my view that, Mr. Blackmore’s lack of a direct interest in the outcome dictates the result of the analysis under Rule 15(5)(a)(iii) as well.
 In the circumstances, what question or issue exists between the respective Attorneys General and Mr. Blackmore et al “which in the opinion of the court, it would be just and convenient to determine as between” them? No proceedings are extant against Mr. Blackmore. He may possibly face a prosecution under s. 293 of the Criminal Code in the future, but that is pure speculation. Of course, Mr. Blackmore may have an abiding interest in the outcome of the Reference, but that is not the same as having a lis with the parties to the Reference, the resolution of which would be “just and convenient to determine as between” them.
 I note here that Mr. Blackmore has commenced a proceeding against the Province for damages arising out of the attempted prosecution of him under s. 293 of the Criminal Code. The constitutionality of s. 293 is challenged in that proceeding in Mr. Blackmore’s reply pleading. Mr. Blackmore has an outstanding application to join at least an aspect of that proceeding with the Reference for the purpose of hearing the matters together. That application remains to be heard by the Court. However, to add Mr. Blackmore as a party to this Reference by virtue of that separate and distinct litigation would not, in my view, be just and convenient. It would transform a reference, which is not an adversarial proceeding in the normal sense, into just that; a proceeding in which Mr. Blackmore and his congregation are elevated to full party status, adverse in interest to the Attorneys General and enjoying standing superior to that of other interested persons who are entitled to be heard under s. 5 of the CQA. In short, the proceeding would no longer resemble a true reference under the CQA.
 Much is made of the submission that the “target” of these proceedings is Mr. Blackmore. That is certainly not so from the broad perspective of the AG Canada, at least. And it is not so as a matter of strict legal analysis. On that analysis the “target” of the Reference is the resolution of the two questions posed.
 I should add that the position of the Reference Amicus, who has been joined as a party, is to be distinguished from that of Mr. Blackmore and the interested persons. By the very nature of his retainer, the Reference Amicus is a party with a direct interest in the outcome of the Reference.
 In the circumstances, I would grant Mr. Blackmore and those whom he represents interested person status in these proceedings on the same terms as my order affecting the other interested persons.
 In seeking an award of advance costs, Mr. Blackmore relies on s. 5 of the CQA, Rule 57 of the Rules of Court, and the inherent jurisdiction of this Court.
 Section 5 of the CQA makes no provision for advance costs to interested persons in a reference; it simply provides for standing. This is in contrast to comparable legislation in other jurisdictions which make specific provision for the court to order that the legal costs of interested parties be paid by the Crown. This Court’s jurisdiction to make the order sought must arise from its inherent jurisdiction, as outlined in Okanagan Indian Band and Little Sisters.
 No authorities were cited to me in which a court has made an order for advance costs in the distinct context of a reference. While there have been a few rare instances in which the Supreme Court has awarded costs to a party after the event (Reference re: Upper Churchill Water Rights Reversion Act 1980 (Newfoundland),  1 S.C.R. 297, and Reference re: Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56,  2 S.C.R. 669, for example), as a general practice, costs are not awarded in references. In Reference re Same-Sex Marriage, 2004 SCC 79,  3 S.C.R. 698 at para. 74, in response to a request for costs by interveners, the Supreme Court described its “usual practice on references” to be denial of costs.
 Advance costs are an extraordinary remedy. The jurisdiction to order such costs is to be narrowly applied as a last resort in rare and exceptional circumstances. As set out in Okanagan Indian Band and Little Sisters, three absolute conditions must be met before a court can exercise its discretion to make an advance costs order:
1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial – in short, the litigation would be unable to proceed if the order were not made.
2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.
(Little Sisters, at para. 37; Okanagan Indian Band, at para. 40)
 In analysing these conditions, the court must decide, with a view to all the circumstances, whether the case is sufficiently special that it would be contrary to the interests of justice to deny the advance costs application. Without prescribing a rigid test as to when a particular case might be sufficiently special, the Court offered these observations in Little Sisters, at paras. 39-42:
a. The injustice that would arise if the application is not granted must relate both to the individual applicant and the public at large. This means that a litigant whose case, however compelling it may be, is of interest only to the litigant will be denied an advance costs award. It does not mean, however, that every case of interest to the public will satisfy the test.
b. The applicant must explore all other possible funding options, and must be able to demonstrate that attempts were made to obtain private funding. Courts should be mindful of all options when they are called upon to craft appropriate orders. They should also not assume that litigants who qualify for such awards must benefit from them absolutely.
c. No injustice can arise if the matter at issue could be settled, or the public interest could be satisfied, without an advance costs award.
d. Where the public purse takes on the burden of an advance costs award, the litigant must relinquish some manner of control over how the litigation proceeds. A definite structure must be imposed or approved by the court, as it bears the responsibility for ensuring that the award is workable.
 In my view, the conclusion reached on Mr. Blackmore’s application to be added as a party virtually dictates the result on this particular application. Clearly, I have concluded that Mr. Blackmore’s participation, while to be encouraged, is not necessary to move the proceedings forward; the Reference will proceed with or without Mr. Blackmore’s participation.
 I conclude that this is not an appropriate case in which to afford one of many interested persons the extraordinary remedy sought. I conclude that no injustice arises in the sense discussed in Little Sisters by denying this application.
 Quite apart from these considerations, I do not accept that Mr. Blackmore has led sufficient evidence on his inability and that of his congregation to somehow fund all or part of their representation.
 In Little Sisters, the majority, noted at para. 40:
Second, the advance costs award must be an exceptional measure; it must be in the interests of justice that it be awarded. Therefore, the applicant must explore all other possible funding options. These include, but are not limited to, public funding options like legal aid and other programs designed to assist various groups in taking legal action. An advance costs award is neither a substitute for, nor a supplement to, these programs. An applicant must also be able to demonstrate that an attempt, albeit unsuccessful, has been made to obtain private funding through fundraising campaigns, loan applications, contingency fee agreements and any other available options. If the applicant cannot afford all costs of the litigation, but is not impecunious, the applicant must commit to making a contribution to the litigation.
 While Mr. Blackmore has certainly led evidence of his inability to pay for legal representation in this matter, and has apparently made fairly significant disclosure of his personal financial situation, he has not reached the challenging evidentiary threshold described here.
 In the result, the applications are dismissed. Mr. Blackmore and his congregation may participate as interested persons on the terms noted, if they are so advised and so inclined.
“The Honourable Chief Justice Bauman”