B.C. seeks ruling on polygamy vs. charter
Last Updated: Thursday, October 22, 2009 | 1:03 PM PT
CBC News
The B.C. Supreme Court is being asked to rule on the constitutionality of Canada's anti-polygamy laws. The B.C. government is asking the province's Supreme Court to decide whether Canada's anti-polygamy law violates the Charter of Rights, Attorney General Michael de Jong announced Thursday.
The move means Crown prosecutors will postpone their appeal of a recent B.C. Supreme Court ruling that threw out charges against two leaders of a polygamous sect living in Bountiful, B.C.
"Until Canadians and the justice system have clarity about the constitutionality of our polygamy laws, all provinces, including ours, face a lengthy and costly legal process in prosecuting alleged offences," De Jong said in a statement.
"I am proposing to pose two questions. The first will ask the court to determine if [Criminal Code] Section 293 is consistent with the Charter of Rights and Freedoms. The second will seek clarity on the Criminal Code provisions of Section 293. I am confident, given the importance of this matter, the court will agree to hear the questions," De Jong added.
By taking the questions to the B.C. Supreme Court for a ruling, in what's called a reference, the Crown will be able to call witnesses to put a human face on the crime of polygamy, he said.
"British Columbians and Canadians deserve and want to know whether valid laws are in place that prohibit polygamous relationships, particularly when those relationships involve minors. I am asking the court for its direction so the justice system, in B.C. and in Canada, can address the serious social harms that can result from the practice of polygamy," De Jong said.
The Criminal Code's prohibition on polygamy could be held to violate the constitutionally entrenched freedom of religion, or possibly another charter right.
3 prosecutors too many
De Jong's move follows a serious legal setback for the provincial government last month when B.C. Supreme Court Judge Sunni Stromberg-Stein ruled that former attorney general Wally Opal did not have the authority to appoint a new special prosecutor to consider the cases of Winston Blackmore and James Oler of Bountiful.
Two previous special prosecutors had already recommended no charges against the men, and instead advised the Crown to first seek a legal opinion from the courts on the constitutionality of Canada's anti-polygamy laws before trying to press charges.
But Oppal, who was attorney general until he lost his legislature seat last May's provincial election, persisted in his efforts to bring the case to trial and apppointed a third special prosecutor, Terrance Robertson, who brought the case to court.
Blackmore and Oler then successfully petitioned the court to stay the charges, arguing that the B.C. attorney general had gone "special prosecutor shopping" until he found someone who would go ahead with charges.
Special prosecutors are used in B.C. to replace regular Crown counsel in politically sensitive cases to avoid the possibility of political interference.
Blackmore and Oler lead two factions of the Fundamentalist Church of Jesus Christ of Latter-day Saints based in the southeastern Interior community of Bountiful. They were arrested earlier this year and charged with one count each of breaching Section 293 of the Criminal Code — which bans polygamy — by entering into a conjugal relationship with more than one individual at a time.
The charges against Blackmore, 52, were linked to his alleged marriages to 19 women dating back to May 2005. The charges against Oler, 44, were linked to his marriages to three women dating back to November 2004.
