Special Prosecutor Given Expanded Powers in Polygamy Cases
The British Columbia government is not giving up on upholding polygamy as a federal Criminal Code offence that is punishable with up to five years in prison. Following the announcement that the BC Supreme Court ruling upholding the polygamy law would not be referred to the Supreme Court of Canada, on March 26, 2012, the Attorney General of British Columbia announced that special prosecutor lawyer Peter Wilson has been given expanded powers to lay charges against polygamists in the province.
Last January, Peter Wilson was appointed special prosecutor to look into the possible prosecution of alleged perpetrators of sexual exploitation and other offences against minors in Bountiful, the polygamist enclave of fundamentalist Mormons in southeastern British Columbia. When appointed, Wilson’s mandate did not include consideration of polygamy-related offences. His mandate has now been broadened to conduct an “independent charge assessment review” of any information brought forward from the ongoing RCMP investigation that might result in polygamy charges.
The attorney general is confident that the current law and the recent BC Supreme Court decision enable police and prosecutors to act with authority in investigating and prosecuting criminally polygamous relationships now.
Some background
Polygamy, simply put is where one man has several wives at the same time who all live in matrimony together. It is different from bigamy, where one person has two or more spouses who are usually unaware of each other.
Bountiful is a settlement located in the Creston Valley of southeastern BC, near Cranbrook, Creston and Lister. The community of Bountiful is made up of members of a Mormon fundamentalist group who hold polygamy as a tenet of their faith. The polygamists live in a commune-style compound outside of Lister. The settlement is named after Bountiful in the Book of Mormon. Daphne Bramham provides a good overview in the Vancouver Sun of how this group came to establish itself in Canada and practise their faith since the late 19th century.
Moving forward many years to the 21st century: in 2009, Bountiful community leaders Winston Blackmore, 52, and James Oler, 44, were 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. Mr. Oler is charged with “practising polygamy” with two women. Mr. Blackmore’s charge relates to 19 women.
Although against the law, the RCMP and BC prosecutors have always been reluctant to lay charges. As stated by Matthew Hennigar in an article posted on the Centre for Constitutional Studies website:
[BC attorney general Wally] Oppal and his predecessors had explained their reluctance to charge Blackmore as arising from their concern that the ban, contained in s. 293 of the federal Criminal Code, might violate the Charter of Rights and Freedoms’ guarantee of religious freedom.
However, based on a technicality, the 2009 charges were quashed by the BC Supreme Court. As such, the arrests were invalid.
Not happy with this outcome, Oppal initiated a constitutional test case to the British Columbia Supreme Court.
Oppal asked the Court to answer two questions about Canada’s polygamy laws: whether the law is consistent with the Canadian Charter of Rights and Freedoms; and what the necessary elements of the offence are.
Opponents of the legislation argued that the law is an affront to the most basic rights guaranteed under the charter: freedom of religion and the freedom of association.
Now to last year: on November 23, 2011, BC Supreme Court Justice Robert Bauman upheld the polygamy section of the Criminal Code, which makes multiple marriages illegal. The judge found that while the law “minimally impairs” the constitutional right of religious freedom, it is justified by the harms polygamy causes to women, children and society. Judge Bauman ruled that the current law is constitutional, but he raised concerns about the prosecution of anyone who is between the ages of 12 and 18 for being in a polygamous relationship. “Women in polygamous relationships are at an elevated risk of physical and psychological harm,” he wrote, adding that “early marriage for girls is common, frequently to significantly older men.” Further:
While s. 293 offends the freedom of religion of identifiable groups guaranteed by s. 2(a) of the Charter and the s. 7 liberty interests of children between 12 and 17 married into polygamy, the provision, save in its application to the latter group, is demonstrably justified in a free and democratic society.
The judge suggests a change to the way the law is interpreted as it applies to children between ages 12 and 17 who marry into polygamy. As it stands, the law criminalizes all parties in a polygamous relationship (i.e., the husband and wives), which might include child wives. According to the judge, this amounts to a serious impairment of “young persons’ liberty interests.”
In my opinion, without the highest court in the land having its say on the matter, I do not know how the BC government and the special prosecutor will be able to have a different outcome then the status quo that has existed since 1888.
I don’t understand the conclusion here. The BC government did a reference to the highest court in the province to see if the Criminal Code’s ban on polygamy was constitutional. The Court said Yes, except in its possible criminalization of girls who were among the several wives of polygamous men.
Why should the province appeal the result that it wanted? The province itself has no power to refer a case to the SCC – only the feds can do that. But the law of BC has been definitively decided, in the absence of either an appeal or a reference to the SCC.
The ‘status quo’ since 1888 has been that no government has wanted to prosecute. That status quo has now changed, and presumably charges will be laid under the ‘valid at least in BC’ sections of the Code. If charges are laid, they can defend on constitutional grounds, which presumably will fail in BC based on the reference decision. So thiat is a ‘different outcome’ than the status quo.
The accused/convicted people may then seek leave for a further appeal to the SCC, which might well consider the issues of national importance. So it is true that the SCC may end up ruling, but there is no good reason for BC to hold off prosecution in the meantime. If one believes that the practice of polygamy is in fact causing harm to women and children, as the BCCA held, then presumably the police and the Crowns should get on with doing something about it.
Sorry for the delay in responding… was out of town… as I understand, the BC government was looking for the law to be upheld without any question marks or statement that any part of the law should be changed because…
In addition, the BC government did consider appealing the case to the Supreme Court of Canada due to the because… and issue raised by the BC Supreme Court and I am sure if they had decided to do so they would have sought the support of the Federal government.