Top court may be asked to rule on polygamy law

Report on allegations about sexual abuse in Bountiful rules out criminal charges but suggests appeal to Supreme Court of Canada


Globe and Mail

IAN BAILEY

August 2, 2007


VANCOUVER -- B.C.'s Attorney-General is considering referring Canada's anti-polygamy law to the Supreme Court of Canada for a test of its constitutional validity.

The option of a reference to the courts was recommended yesterday by a special prosecutor tasked to offer legal guidance on how the province should deal with allegations of sexual abuse among polygamists in the community of Bountiful, located in southeastern B.C.

Richard Peck, a Vancouver lawyer, ruled out criminal charges, but called for a reference question on Section 293 of the Criminal Code to the British Columbia Court of Appeal. He added in the text of a report released to the news media that there would be "a probable further appeal to the Supreme Court of Canada."

"My view is that the public interest will best be served by an authoritative and expeditious judicial resolution of the legal controversy surrounding polygamy," he wrote.


"The legality of polygamy in Canada has for too long been characterized by uncertainty. The integrity of the legal system suffers from such an impasse, and an authoritative statement from the courts is necessary in order to resolve it."

B.C. Attorney-General Wally Oppal said he will decide soon whether to accept Mr. Peck's suggestion, and, in response to a reporter's question during a conference call, said he would not rule out talks with federal Justice Minister Robert Nicholson for a direct reference to the Supreme Court.

"We're quite prepared to go it alone as far as a reference is concerned, or as far as charges are concerned, but the federal government, in constitutional issues of this sort, generally gets involved," Mr. Oppal said. "I expect they would get involved."

A spokeswoman for Mr. Nicholson said it was too soon to offer a view right now. "There are no proceedings in the courts so it would be premature for us to comment at this time," Geneviève Breton said in an e-mail statement from Charlottetown, where the federal Tory caucus is holding a three-day summer strategy session.

Since he was appointed to cabinet, Mr. Oppal, a former appeal court judge, has been concerned with sexual-abuse allegations in Bountiful, home to a community of fundamentalist Mormons who have a polygamist lifestyle.

RCMP investigations in 1990 and 2006 prompted a call for charges. But there were fears in the first case that a polygamy ban would be struck down as a violation of religious freedom under the Charter of Rights and Freedoms, and in the second case that there was not a substantial likelihood of conviction based on the available evidence.

"After extensive study of the relevant material, I have come to the conclusion that polygamy itself is at the root of the problem. Polygamy is the underlying phenomenon from which all other alleged harms flow," Mr. Peck writes. "The public interest would best be served by addressing it directly."

Under Section 293 of the Criminal Code, polygamy is illegal, but prosecutions are "exceedingly rare," Mr. Peck says.

Yesterday, Mr. Oppal rejected the view that religious freedom guarantees would trump the polygamy measures of the Criminal Code.

"My disagreement is based on the fact that I don't think Canadians would condone polygamy. I think Canadians would find it abhorrent. I think it runs contrary to equal treatment for women. I am quite mindful of that, and that's one thing I am most concerned with."

Mr. Oppal said he is prepared to be patient. "Obviously, I am concerned about delays and I have said that since I came in here in 2005. We would like to proceed as quickly as possible but, having, said that, this issue has been with us now for some 16 or 17 years," he said. "From that perspective, I think we're doing well."

Prosecutions would not be easy, Mr. Oppal said. Many prospective witnesses contacted via police investigations have said they consented to sexual activities.

"Picture the prosecutor who calls a 14- or 15-year-old girl to testify and she testifies to a jury that, 'I consented to all of this, that I wanted to do all of this,' " he said.

"In order for a jury to convict, they would have to disregard her evidence and come up with their own version of the facts. You have to keep in mind the onus is on the prosecution to prove guilt beyond a reasonable doubt. A defence lawyer would quite properly argue the only witnesses the Crown have called here have said, under oath, that they consented to this activity. What are we supposed to do about that?"

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