B.C. finally decides to enforce the law against polygamy

The Vancouver Sun January 9, 2009

Vancouver Sun Editorial

When an individual commits a crime, it's clear that individual has little respect for the law. But when law enforcement officials fail to lay charges against an individual who openly admits to committing a crime, it brings the law itself into disrepute.

This, unfortunately, has been the case in British Columbia for the past 60 years. Fundamentalist Mormons in Bountiful have been practising polygamy for at least that long, with leader Winston Blackmore recently boasting about his involvement in the practice.

Yet the government of B.C. did nothing, with successive attorneys-general declining to lay charges for fear that the law would be declared unconstitutional. That finally changed this week, as the Crown decided to lay charges against Blackmore and bishop James Oler.

The decision, though long overdue, was both commendable and courageous: Commendable, because evidence suggests that polygamy as practised by sects like that in Bountiful harms women and children. And courageous, because, as previous attorneys-general feared, there is a risk that the law will be found unconstitutional.

Indeed, the constitutionality of section 293 of the Criminal Code, which prohibits practising polygamy or entering into a conjugal union with more than one person, is anything but certain.

First, the law seems overly broad in that it could apply to anyone who chooses to have a relationship with more than one person at a time, rather than just catching those who run what is for all intents and purposes a dangerous cult.

The law could also be -- and given Blackmore's previous statements, likely will be -- subject to a Charter challenge on the grounds that it violates the Charter right to freedom of religion. Various experts have given various opinions on this matter, though two legal opinions sought by B.C. Attorney-General Wally Oppal concluded that the law could ultimately be upheld as a reasonable restriction on that right.

The opinions did, however, recommend that the government refer s. 293 to the courts to determine its constitutionality, rather than proceed with charges. There are several advantages to this: A reference case would not be hampered by the possible unwillingness of witnesses to testify against defendants, and the case would go directly to the Court of Appeal, with the constitutional issues being resolved more quickly.

But Oppal has long opposed this course of action, noting that the courts have difficulty determining constitutionality in the abstract, in the absence of any particular factual situation. The charges against Blackmore and Oler will provide those factual situations, which should make the matter clearer.

Nevertheless, courts might ultimately find the law unconstitutional, and that would mean that polygamy -- at least temporarily -- is legal in Canada. It would also mean that Blackmore and Oler would be free men.

But this would not be the end of the matter: Other charges could still be laid against members of the Bountiful sect, and Parliament could rewrite the polygamy law in a way that achieves its aim of protecting vulnerable people while addressing the courts' concerns.

This is the way the law works -- as a dialogue between the courts and Parliament. But for the law to work and for the dialogue to get started, governments must first use the law, rather than ignore it. So the B.C. government is to be commended for finally enforcing the law.

This article was found at:

http://www.vancouversun.com/Life/finally+decides+enforce+against+polygamy/1158217/story.html