B.C. government has a duty to protect Bountiful's children while challenging polygamy

Vancouver Sun - August 3, 2007

Editorial

Polygamy has been a crime in Canada since 1892. Under s. 293 of the Criminal Code any kind of conjugal union with more than one person at the same time, whether or not it is recognized as a binding form of marriage, is an indictable offence that carries a penalty of up to five years in prison.

There's no ambiguity in s. 293. Polygamy is illegal, no ifs, ands or buts.

Given this clear prohibition, it is baffling that a polygamous community of fundamentalist Mormons at Bountiful in East Kootenay has been allowed to thrive for 60 years in defiance of the law. Polygamy has never been prosecuted in British Columbia, although the RCMP recommended in 1990 -- to no avail -- that charges be laid against several Bountiful leaders.

The reluctance to prosecute has long been based on the view that a conviction would be unlikely because a brainwashed 15-year-old girl forced into an arranged multiple marriage with a much older man would be unwilling to testify against her elders. (The notion that a victim of this age could give consent to a sexual act with a male authority figure is ludicrous, of course.)

Of even greater concern is that a constitutional challenge under provisions of the Charter of Rights and Freedoms that guarantee freedom of religion would strike down the polygamy law.

To his credit, Attorney-General Wally Oppal, who understands that most Canadians find polygamy repugnant, has sought a way around this legal imbroglio. Pressing ahead where other attorneys-general feared to tread, he appointed Vancouver criminal lawyer Richard Peck as an independent special prosecutor to study the issue in May.

This week, Peck recommended that the constitutionality of the polygamy law be determined through a reference question to the B.C. Court of Appeal and Oppal seems inclined to accept his advice. Because it involves a constitutional matter, the Supreme Court of Canada is also expected to weigh in. This process could bring the matter before the Supreme Court within 18 months. If the courts find the polygamy law invalid, Parliament will have to rewrite it. If it comes to that point, Parliament must establish a legal framework that makes it clear that Canadians do not condone polygamy and find it abhorrent, and that no religious belief or practice shall override fundamental human rights.

The evidence that polygamy is socially harmful is irrefutable: Violations include child and coerced marriages, trafficking in girls, sexual abuse, and the denial of education and access to information.

"Invariably, where there's polygamy there's abuse of women," Oppal said earlier this year. "I'm most concerned about the sexual abuse of young girls."

While waiting for the courts to make a declaration on the constitutionality of the Criminal Code prohibition on polygamy, provincial authorities should pursue another avenue to protect the children at risk of abuse in Bountiful and other polygamous groups.

B.C.'s Child, Family and Community Service Act deems a child is in need of protection if at risk of physical or emotional harm or sexual abuse or exploitation. Status of Women Canada, a federal agency, asserts that polygamy is associated with poor emotional and educational outcomes for children

By definition under the act, the children of Bountiful need protection. It is a provincial responsibility to ensure their safety and well-being. The act gives the government broad powers to remove children without a court order if there are reasonable grounds to believe they need protection.

As the legal process winds its way to a conclusion, children at Bountiful remain at risk. The government has the power, even without the Criminal Code, to protect them. It should do so now.

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