12 Jan 2009

The Crown likely will lose polygamy case against Blackmore

The Montreal Gazette - January 10, 2009
Canwest News Service

Lawyers warn that religious freedom would protect multiple marriages

by MICHAEL SMYTH | Canwest News Service

Somewhere, right now, Winston Blackmore must be smiling.

The self-styled "Bishop of Bountiful" - Canada's most high-profile polygamist leader - is being handed a show-trial platform to prove what he's been saying for years: Taking multiple wives is a religious right and freedom, protected by the constitution.

As counter-intuitive as that might sound to people, he will have a very strong case. In fact, he will probably win, delivering the polygamist leaders in Bountiful a huge moral and legal victory.

B.C. Attorney-General Wally Oppal's heart is in the right place. He cares about the women and children of Bountiful and believes they are being exploited. He's trying to protect them.

But by bringing such a weak case against Blackmore and co-accused James Oler, Oppal's efforts seem bound to backfire.

Blackmore's lawyers will argue the fundamentalist practice of polygamy goes back more than 150 years in North America. They'll point out polygamy is practised widely and openly around the world, including in places like Afghanistan, where Canadian soldiers are fighting and dying to preserve freedoms in that country.

They'll argue the traditional interpretation of marriage between one man and one woman has been thrown open to wide liberal interpretation now that same-sex marriage has been legalized in Canada. And they'll be right on every count.

I'm not saying I support polygamy, because I don't. I'm just pointing out the reality: There's a reason nobody has been charged with polygamy in this country for more than a century. It's because the lawyers themselves know the charges won't stick.

The experts in Oppal's own ministry have said for years the Criminal Code section outlawing polygamy is outdated and unenforceable.

"It is in direct conflict with the freedom of religion guarantees in Section 2 of the Charter of Rights and Freedoms," concluded one legal opinion sought by the B.C. attorney-general's office. Several others said the same thing.

A 2005 study done for the federal Justice Department recommended the law against polygamy be repealed and the practice decriminalized, noting a conviction would result only in a "light penal sentence" anyway.

In other words, even if they buck the odds and the Crown can prove polygamy is still illegal in Canada, Blackmore would probably get a slap on the wrist. And the whole legal circus will cost taxpayers a fortune to boot. So what's the point here?

Oppal should have followed the example set by the U.S. authorities who took down polygamist "prophet" Warren Jeffs on more serious charges like sexual exploitation. That's the kind of charge that can be proven and stick in a court of law.

Instead, Oppal is proceeding with the flimsiest case possible. And the ramifications of losing are serious.

Consider this: If the polygamists win in Bountiful, what will be the reaction of Canadian Muslims? Many Muslim countries allow polygamy, though Canada currently does not allow Muslim immigrants to bring multiple wives into the country.

But if polygamy is recognized as a constitutional right in Canada, there's nothing to stop Muslim groups from demanding recognition of their polygamist marriages and suing to have their multiple wives and children allowed into the country.

Is that what Canadians want? Will that stop the exploitation of women and kids? Wally Oppal should be careful what he wishes for.

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