11 Sep 2007

B.C. attorney general again reviews decision not to lay polygamy charges

The Canadian Press - September 8, 2007

VANCOUVER (CP) — Yet another review has been ordered on whether criminal charges can be laid against members of a B.C. polygamist colony.

This time, high-profile lawyer Leonard Doust is being asked to review a report that concluded there wasn't enough evidence to charge members at the breakaway Mormon sect in Bountiful, B.C., with sexual offences.

Special prosecutor Richard Peck concluded in a report released in August that the provincial government should ask the court to rule on the constitutional validity of Canada's laws against polygamy.

Peck said a reference to the court would avoid a lengthy criminal trial in which the defendants would likely claim religious freedom and where getting witnesses to testify could be extraordinarily difficult.

"Peck looked at it from one particular angle as to the reference part, not necessarily from the perspective of whether we should lay charges and let the defence raise (the constitutionality), and I've always sort of felt that way about it," said Attorney General Wally Oppal, a former judge, in an interview.

"I just want to cover all bases. We just want to be cautious before we do those things."

Peck's report itself was a review of past recommendations by other Crown lawyers over the years who concluded the government was at risk of losing any trial on polygamy charges. They said the defence would simply assert that the law banning the practice was illegal under the religious freedoms guaranteed by the Charter of Rights.

Critics of Bountiful have repeatedly complained the government is doing nothing but studying the question while women are exploited.

"Why now do you have to hire another high-profile lawyer? How much is being spent on this that could actually be spent in the courts prosecuting these polygamists?" asked Nancy Mereska, who runs the Stop Polygamy Coalition.

Though she said it's good to know the government is considering laying charges, the delay is frustrating.

"I see it as another delay tactic so that one person doesn't have to take the responsibility," she said. "They are elected to that position to take this responsibility. Why does he want to lay it on the shoulders of other people?"

Peck had also looked at whether members of the community could be charged with sexual offences, which was seen by many as another legal avenue available to the government to try to stop young women from being forced to marry older men.

Peck concluded it wasn't an option, and that a constitutional reference question was likely the only way for the government to proceed.

"Peck has offered us a route that is conservative and he thinks it's a good clean conservative way to go and there is some merit to that suggestion." Oppal said.

"I am a little more aggressive on this."

Doust is being asked to review the case and other factors Peck considered in coming to that conclusion.

Oppal said he also wasn't comfortable with the idea of putting the question before the courts.

"Courts often don't like giving opinions on these things," he said. "They say why should we give an opinion in a vacuum when there is no charge against us."

If Doust concludes a prosecution meets the criminal justice branch's charge approval policy, Oppal has asked that Doust conduct the prosecution.

He said he didn't expect Doust's report to take long because no new information will be gathered.

Peck declined to comment on the ministry's decision when contacted by phone on Friday.

Members of the colony, located in southeastern B.C., belong to a breakaway sect of the Mormon church and believe that in order to get into heaven, men must marry as many women as possible.

Charges against members of the colony were recommended by RCMP as far back as 1990.

The Crown decided not to proceed based on legal opinions that the polygamy ban would be struck down as an infringement on religious freedom.

In 2006, the RCMP again recommended charges, this time under the sexual exploitation provision of the code, which prohibits an adult from having sex with someone between age 14 and 18 when the adult is in a position of authority .

Again, the Crown concluded a conviction was unlikely.

The Church of Jesus Christ of Latter-day Saints, or Mormon Church, renounced polygamy in 1890 and the Bountiful group broke away from it. The Mormon Church excommunicates members who practise polygamy.

New Democrat Opposition critic Leonard Krog said Oppal was missing the point.

"While the issue of polygamy is important, what is much more important is the protection of children. And the Attorney General's decision to restrict the terms of review to polygamy gives the wrong message," said Krog. "The women and children of Bountiful have waited a long time for justice. The time for action is now."


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