The charges brought yesterday against two leaders in the polygamous community of Bountiful, B.C., are likely the first steps in a process that could see Canada's anti-polygamy law struck down as unconstitutional.
Over the past two decades, four attorneys-general in British Columbia have been reluctant to lay a charge because of a fear that their cases would have no chance of surviving a religious freedom defence under the Charter of Rights and Freedoms.
Last April, Wally Oppal, the current Attorney-General of the province, said the criminal justice branch believed any prosecution would fail because of a possible violation of the constitutional guarantee of religious freedom. But he also said the only way to test its constitutionality was to lay a charge and "then let the defence worry about the constitutionality issue."
But Beverley Baines, a law professor at Queen's University who produced a report for the federal government in 2006 on the polygamy issue, said yesterday that a constitutionality challenge is one the government is likely to lose.
"It was sufficiently clear [the law] was unconstitutional and we shouldn't waste taxpayer money on individual court cases," she said yesterday about the conclusions she reached in her report, which called for polygamy to be decriminalized.
Winston Blackmore, the spiritual head of the Bountiful community, has said in the past that he would invoke his right to freedom of religion if he was ever charged, setting up a battle that would impact not only his B.C. sect but the many other families in Canada that are believed to have secret polygamous relationships.
While the mainstream Mormon church gave up polygamy decades ago, members of fundamentalist Mormon sects, like the one in Bountiful, continue the practice and consider it a religious right to have more than one spouse.
Polygamy has been illegal in Canada since 1892, when a law was passed to keep polygamous Mormons out of the country. The modern statute, called section 293, dropped the bias against Mormons but continued to make polygamy illegal.
But over all those years the law has rarely been applied even though police on occasion have said charges should be laid.
In 1990, a B.C. police investigation recommended charges be laid in Bountiful but the Crown received legal opinions that the polygamous ban would be struck down as a "unjustifiable infringement of religious freedom."
In 2006, the RCMP looked at sexual exploitation charges instead but it was agreed that there would not be enough evidence to get a conviction.
In 2007, Mr. Oppal appointed Vancouver lawyer Richard Peck to make an independent assessment of the law and how it might be used. While Mr. Peck concluded that polygamy was the "underlying phenomenon from which all other alleged harms flow" in Bountiful, he did not think a prosecution would work.
Rather, he advised that section 293 be referred to the courts to test its constitutionality, which experts said would give the law real clout if it was upheld. Mr. Peck wrote that he thought the law would be upheld.
He discouraged individual prosecutions, like the ones announced yesterday, because they "would likely face a number of obstacles, resulting in a cumbersome and time-consuming process" and that the "constitutional issue might not be heard for some time after the charges are laid."
Following Mr. Peck's report, another Vancouver lawyer Leonard Doust, was also asked to give his recommendation and came to the same conclusion.
Other legal experts have also had strong concerns about the chances of individual prosecutions.
Ms. Baines, said yesterday that if the polygamy issue was going to go to court a reference would have been the way to go. That way, she said, it would have been a quicker route to a higher court and it would have allowed for various intervenors to make their case. However, even with a reference she was convinced section 293 would have been struck down.
She said complicating the issue is the large number of immigrants who are coming to the Canada from countries where polygamy is recognized as legitimate.
But because it is illegal here, there is no way of knowing what impact that is having on the women and children who live in such families.
"The problem is that Canadian culture has changed significantly and there are many people living secretly in polygamous relationships. There is an assumption that polygamy is bad for women and children - but as long as it's a crime, no one is going to belly up and say they're living in the relationship. Until they decriminalize it we can't know if it's harmful in Canada."
Others see the issue of polygamy getting blown out of proportion because of the particular case of Bountiful. Last year, James Gratl, then president of the B.C. Civil Liberties Association, said the problem with anti-polygamy laws is they assume there is one form of marriage that is proper.
"It's tempting to point at polygamy as the determining factor which creates abuse," he said. "But one should resist that temptation in light of the fact that similar abuses occur in quite ordinary marriages. And no one is suggesting wiping out the institution of marriage because some of those marriages lead to insular family structures [like in Bountiful]."
-By Charles Lewis, National Post
Published: Wednesday, January 07, 2009
