June 16, 2008
by Robert Matas
VANCOUVER -- The special prosecutor looking into polygamy in British Columbia says he intends to ask the RCMP to reopen their investigation into the polygamous religious community at Bountiful to find out whether men in authority fathered children with underage girls.
"The law says it is an offence for a person in a position of authority over another to sexually touch someone if they are under 18," Vancouver lawyer Terry Robertson said in his first extensive interview since his appointment this month in the high-profile case.
Some members of the Fundamentalist Church of Jesus Christ of Latter Day Saints who live in Bountiful have spoken openly about their polygamous relationships as part of their religion. Some women who have left the community say girls as young as 14 have been married to men more than 20 years older.
Reinvigorating the police investigation is only part of the work that Mr. Robertson said he plans to undertake before submitting his report this fall. He also indicated he intends to head in a new direction in his analysis of the crime of polygamy, as set out in the Criminal Code.
Mr. Robertson said he will begin with a look at whether the law against polygamy breaches the freedom-of-religion provision of the Canadian Charter of Rights and Freedoms.
But he anticipates he will spend more time on whether prosecution can proceed even if polygamy is constitutionally protected.
A Charter provision says all rights and freedoms are subject to reasonable limits that can be demonstrably justified in a free and democratic society. That means you can infringe on someone's rights, if the exercise of that religious right causes significant social harm, Mr. Robertson said.
"If we proceed [to laying criminal charges], the bulk of evidence would be how polygamy affects people in society in general, not simply the way it is practised in Bountiful."
The prosecution would be required to call witnesses to satisfy the court "that in fact the degree of harm, social harm resulting from polygamy per se - not just in Bountiful - is such that criminalizing it is justifiable in a free and democratic society. That is the main argument, as I see it," Mr. Robertson said.
The thorny issue of polygamy has confounded the B.C. government since the early 1990s, when women who left Bountiful in the remote southeastern corner of the province drew attention to a lifestyle there that they alleged involves the sexual exploitation of women and children.
Mr. Robertson, who has 44 years of experience in law, mostly as a defence attorney, is the most recent in a string of lawyers and former appeal court judges who have been asked over the past 15 years to consider whether criminal charges were warranted.
B.C. government lawyers have advised a succession of attorneys-general that the Charter provision for freedom of religion protects the polygamous men at Bountiful from prosecution. More recently, Vancouver lawyers Richard Peck and Len Doust, in separate opinions, concluded that an infringement of the constitutionally protected right may be justified, but they advised the government to seek a ruling from the courts to clarify the law before anyone is charged.
Mr. Robertson said the opinions of Mr. Peck and Mr. Doust reflect a recent Supreme Court of Canada ruling that stated freedom of religion may be infringed if the practice of that religious right causes significant social harm. "That basically is why their opinions differed from [the government lawyers]," he said.
Attorney-General Wally Oppal, a former appeal court judge, rejected the advice of Mr. Peck and Mr. Doust. Mr. Oppal would prefer a criminal charge against a specific individual and a constitutional ruling from a trial court, Mr. Robertson said.
"It's a question of whether I agree with Mr. Oppal or Mr. Doust and Mr. Peck as to the proper procedural way to go," Mr. Robertson said.
Mr. Robertson is part of a four-member team that could grow, depending on what happens over the next few months. The group includes a junior lawyer with three years experience, a student conducting legal research into European and U.S. prosecutions and reviewing social-science studies, and a librarian dedicated to research on the Internet and in the literature on polygamy.
The government did not provide Mr. Robertson with a budget for the review, although hourly rates were specified. Mr. Robertson declined to reveal those rates.
He was appointed as a special prosecutor on June 2. He said he expects to meet soon with the RCMP to ask them to revive their investigation. The police have conducted numerous probes of the polygamous community, the most recent in 2006. It will be up to the police to decide whether they require DNA testing to determine the paternity of children at Bountiful, Mr. Robertson said.
More than 1,000 people are believed to live in Bountiful, a rural area outside Creston, B.C.
This article was found at:
http://www.theglobeandmail.com/servlet/story/LAC.20080616.BCPOLYGAMY16/
TPStory/National
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