The trial of Chatham resident Timothy Mielczarek is on hold after the judge questioned whether the bigamy law is constitutional.
Justice Thomas Carie says the case against Timothy Mielczarek seems to be only the second bigamy case that has been tried since the Charter of Rights was implemented and the other was in 1983.
He isn't sure there is any protection to society in the law but says it seems to harken back to a time when the law was used to uphold Christian morals.
He says a lot has changed since those days, both in societal values and in family law, noting that society no longer considers it scandalous if a child is born out of wedlock or if gays marry.
"I cannot register a conviction on a case that I believe might be constitutionally invalid," Justice Carie said in asking the Crown Attorneys office to consider making a constitutional argument on the issue. "It is unusual that this is coming from the bench. The principal ultimately is that judges are responsible if they feel a law is unfair to raise that."
The judge wondered if the lack of prosecutions is because crown attorneys also aren't sure if the law is constitutional.
Meanwhile, a charge of uttering a forged document has been dismissed.
The judge has doubts about the procedures that were followed in preparing the marriage licence application and the way it was sworn to and said the crown has not sufficiently proven that a forgery did occur.
The case has been put over to May 16 to give the Crown Attorney time to investigate making a constitutional argument.
