The Macleans.ca Interview: Wally Oppal
Chris Selley Oct 1, 2007
Last week, a Utah jury convicted polygamist leader Warren Jeffs as an accomplice to the rape of a 14-year-old girl. To critics of the British Columbia Attorney-General's Office, this was another stark reminder of the commanding lead American jurisdictions hold over B.C. in successfully bringing polygamists to justice. Stories of physical and sexual abuse, child brides and poor education have filtered out of Bountiful for years, yet for various reasons the government has been unwilling or unable to pursue charges.Tough-talking Attorney-General Wally Oppal insists he's the man who will finally put Canada's law against polygamy to the test—either by pursuing a charge or referring the law to the B.C. Court of Appeal as a "reference case."In fact, he says, Canadians can expect to finally see some tangible progress within the month. Oppal spoke to Macleans.ca about Jeffs, the differences between the American and Canadian situations, and what we can expect to see here if the law is upheld.
Wally Oppal: I don't normally cheer convictions, I think it's somewhat unseemly to do that. But in this particular case I'm encouraged by what has taken place because of the potential social consequences—the whole concept or idea of these communes where children are being abused—and from that perspective I think the jury's verdict might well send a message to the people in those communities that the law and right-thinking people will not stand by while all this is taking place. Having said that, it doesn't help us too much [in Canada] except that hopefully the people in the communities will know that the outside world is interested and has a vital stake in what's going on. As you know, we've been frustrated here by the lack of witnesses who are prepared to testify to any sexual abuse or exploitation that may be taking place in Bountiful. This issue's been in this province for 20 years, and when I became the Attorney-General two years ago I said that this is a matter of considerable priority for me, so we've reopened the investigation and we're just waiting for one more opinion.
M: Is that lack of witnesses the key difference between the Canadian and American situations?
WO:They're not exactly inundated with cooperating witnesses either. I've talked to the attorney generals of both Arizona and Utah—this past summer I met with them at a conference. They're faced with the same difficulties, but in this particular case they got a conviction that was somewhat unusual in that they convicted [Jeffs] of being an accomplice to the offence of rape while they did not even charge the principal, which is very, very unusual. So they used that evidence and they used evidence of surrounding circumstances to convict the guy. And if we had similar evidence here, we would do it.We're hamstrung here because our law says that once you've reached the age of 14 you're competent to consent. Now, the law is in the process of being changed. The age of consent will now be increased to 16, which I think is a positive move to protect children and anyone else who may be exploited.
M: But there have certainly been accusations over the years that British Columbia has been timid on this, at least compared to the U.S. There was a case last year in Arizona where a man was convicted of having sex with a minor where the victim didn't even testify— it was based on paternity records and testimony from former fundamentalist Mormons. The RCMP has examined records from the midwife's clinic in Bountiful. Could you not have been more aggressive in pursuing charges on those grounds?
WO: Nobody's been more creative and adventuresome than I have. … We tried that method, but unfortunately all the birth records involved people over the age of 14. And if we had anybody under 14, that being the legal barrier, we would charge in a heartbeat. But there's no question that there's more than one way to skin the proverbial cat, and we've looked at all those things. We've looked at circumstantial evidence. I've talked to the police about whether or not there's enough evidence from which you could draw the inference that [crimes are taking place]. But at the end of the day, it comes down to two things: one is, were the victims 14 or over, and it appears in all cases that they were; and secondly, are they prepared to testify, and the answer is no. And in fact, they've told our investigators that if they testified they would say that they in fact wanted to involve themselves in these relationships with much older men.
M: But doesn't the age of consent not apply when the adult is in a position of trust or authority?
WO: That doesn't come into effect here. The position of authority [law] is Section 153. That's a separate charge. And in those circumstances, yes, you don't have to worry about the consent in the same way. However, in this case, there's absolutely no evidence that we could ever bring forward in a courtroom that anybody used their dominant position to take advantage of someone else. In fact, we were told quite clearly by the available witnesses that they would testify to the contrary. So they would deep-six our case.
M: But there have certainly been accusations over the years that British Columbia has been timid on this, at least compared to the U.S. There was a case last year in Arizona where a man was convicted of having sex with a minor where the victim didn't even testify— it was based on paternity records and testimony from former fundamentalist Mormons. The RCMP has examined records from the midwife's clinic in Bountiful. Could you not have been more aggressive in pursuing charges on those grounds?
WO: Nobody's been more creative and adventuresome than I have. … We tried that method, but unfortunately all the birth records involved people over the age of 14. And if we had anybody under 14, that being the legal barrier, we would charge in a heartbeat. But there's no question that there's more than one way to skin the proverbial cat, and we've looked at all those things. We've looked at circumstantial evidence. I've talked to the police about whether or not there's enough evidence from which you could draw the inference that [crimes are taking place]. But at the end of the day, it comes down to two things: one is, were the victims 14 or over, and it appears in all cases that they were; and secondly, are they prepared to testify, and the answer is no. And in fact, they've told our investigators that if they testified they would say that they in fact wanted to involve themselves in these relationships with much older men.
M: But doesn't the age of consent not apply when the adult is in a position of trust or authority?
WO: That doesn't come into effect here. The position of authority [law] is Section 153. That's a separate charge. And in those circumstances, yes, you don't have to worry about the consent in the same way. However, in this case, there's absolutely no evidence that we could ever bring forward in a courtroom that anybody used their dominant position to take advantage of someone else. In fact, we were told quite clearly by the available witnesses that they would testify to the contrary. So they would deep-six our case.
M: There are arguments out there, mostly theoretical, that if four consenting people want to arrange themselves in some kind of marital-type arrangement, maybe we shouldn't stop them from doing so.
WO: That's why British Columbia didn't do anything for the last 20 years—because they not necessarily bough into that argument, but they knew that that argument was out there and so they weren't as aggressive. I happen to take a different position on that, because I think that right-thinking Canadians can't believe that the principle of freedom of religion is absolute. And we would throw away all our other principles in order to abide by that principle. That's the argument that's always raised, that the freedom of religion under the Constitution allows people to go to their own devices as long as everybody consents on religious grounds. So I just happen to think that there are other issues involved here, such as equality of women, the apparent treatment of women as objects and property, and those are things that I think are intolerable in our society.
M: But in a perfect world, if there were witnesses available, would you prefer to charge people for the individual things that are associated with polygamy? Or do you think it's important to charge under Section 293?
WO: In a perfect world, I would like to [bring] sexual abuse charges. No question in my mind that's far more serious than the others.
M: Looking forward, Richard Peck's report talked about giving "fair notice" to communities, assuming Section 293 was upheld, that the practice of polygamy must cease. Is that how you envision it happening—sort of a deadline?
WO: Mr. Peck has done his usual thorough argument, and what he has said is that in the '90s, when this problem first arose and came to light, the authorities stood by and did nothing. So his suggestion is that they gave comfort to these people, and that in fact would make it unfair now to prosecute them. That's Mr. Peck's position, and for that reason he's suggested that a cleaner way of doing it is to get an opinion from the Court of Appeal regarding the constitutionality of the offence. But I think the other side of that coin is that merely because you don't prosecute a continuing offence doesn't necessarily mean that you give licence to the further committing of that offence. I mean, there are a lot of crimes that are being committed but aren't necessarily being prosecuted. But that doesn't make the conduct lawful. And so I'm just getting one more opinion, and that's from Leonard Doust. He's had the file for over a month. And from that we will determine what steps to take yet. But I can assure you that something will be done.
M: Practically everyone in Bountiful could theoretically be charged with something under Section 293, but if the law was upheld, obviously you can't just go in and arrest everybody. Has a strategy been developed on how you might approach that?
WO: No, there isn't that. But we would charge and we might pick out the most noticeable of the [offenders]. And in fact, Mr. Blackmore's been out there front and centre, and I hate to ever mention names who may be charged because it's not really proper, but in this case he's sort of dared us to go ahead and do it. So we might just take him up on that offer.
M: If someone asked you for a timeline, when they could hope to see something happen…
WO: I would think, and I'm guessing here, I would think that probably within the month. I met with Mr. Doust myself on this, took the unusual step of doing that, and he wants to look at all the material and it's 20 years worth of material. I wouldn't think he'll take too long, because he's a thorough worker, thorough lawyer and I'm sure that he'll go through this in fairly quick order.
M: So going to the Court of Appeal would be fairly quick process after that?
Yeah. We might go to the Court of Appeal, or we might lay a charge
http://www.macleans.ca/article.jsp?content=20071001_180333_8612
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