9 Nov 2010

British Columbia gov't asks provincial Supreme Court to decide on constitutionality of anti-polygamy law

CTV News - Canada October 23, 2009

Polygamy has 'no place in Canada': justice minister

by CTV.ca News Staff

The federal justice minister says polygamy has "no place in Canada," after calls for clarity on the issue from the British Columbia attorney general. [see article below]

"The prohibition on polygamy is certainly consistent with Canadian values," Justice Minister Rob Nicholson told reporters Friday at a news conference

He said the federal government is prepared to defend the law, which prevents people from being married to more than one person at one time.

His comment comes the day after B.C.'s attorney general said Canadians and the justice system need clarity on whether or not polygamy is a crime.

On Thursday, the B.C. government said it decided to seek an opinion rather than appeal a court ruling that quashed polygamy charges against Winston Blackmore and James Oler. Both are leaders of breakaway sects of the Mormon Church in Bountiful, B.C. The mainstream church banned polygamy more than 100 years ago.

Blackmore was accused of having 19 wives and Oler three.

The charges were dropped because B.C.'s attorney general did not have the jurisdiction to appoint a second special prosecutor to consider charges against the men

On Thursday, Joe Arvay, the lawyer for Blackmore said his client wants to participate in the hearing, to make sure the court hears his side of the story. Lawyers for Blackmore and Oler argue the law is a violation of their charter rights to religious freedom.

At the news conference, Nicholson said the law is constitutional and complies with both the charter and the Canadian bill of rights.

"The prohibition on polygamy is consistent with Canadian values and I am confident it'll pass constitutional muster," Nicholson said.

He would not elaborate on what argument the federal government will be presenting in court to defend the law.

One constitutional law professor says that even if polygamous marriages do end up allowed, they may still pose legal problems.

"It would mean that those religious sects that use polygamy as their marriage form could go ahead and do it religiously but it would not make the marriage legal," Beverley Baines, a law professor at Queen's University told Canada AM.

The province will specifically ask the B.C. Supreme Court if the law barring polygamy is consistent with the charter and will also ask what role the law has in governing relationships between consenting adults and relationships with youth.

There have been allegations in Bountiful that teenage girls have been married to middle-aged men, and that some have been sent to the United States to marry older men in sister sects there.

"It's very crucial that the women involved in polygamous relationships...are given an opportunity to testify," said Baines.

The RCMP have launched numerous investigations into Bountiful since 1990, but prosecutors have repeatedly shied away from laying charges. [see history of polygamy prosecutions in article below]

University of Western Ontario law professor Grant Huscroft told Canada AM the province should have acted earlier.

"The province got it into its head that the laws were unconstitutional. These are federal laws," said Huscroft.

"Rather than go ahead and charge and let the accused persons raise the argument about the law being unconstitutional, they got paralyzed into not doing anything and that's allowed basically a generation of polygamous conduct in British Columbia to go on," said Huscroft.

The charges were eventually laid under former B.C. attorney general Wally Oppal proceeded with polygamy charges against Blackmore and Oler despite earlier legal opinions that the polygamy issue should be referred to the court as a test case.

CTV legal analyst Steven Skurka told CTV News Channel that this could be a long court battle.

"I think this is going to be a real test for the court," Skurka said. "I'm not predicting which way this will end up, its certainly going to be a close call."

This article was found at:



CBC News - British Columbia, Canada October 22, 2009

B.C. seeks ruling on polygamy vs. charter

The B.C. government is asking the province's Supreme Court to decide whether Canada's anti-polygamy law violates the Charter of Rights, Attorney General Michael de Jong announced Thursday.

The move means Crown prosecutors will postpone their appeal of a recent B.C. Supreme Court ruling that threw out charges against two leaders of a polygamous sect living in Bountiful, B.C.

"Until Canadians and the justice system have clarity about the constitutionality of our polygamy laws, all provinces, including ours, face a lengthy and costly legal process in prosecuting alleged offences," De Jong said in a statement.

"I am proposing to pose two questions. The first will ask the court to determine if [Criminal Code] Section 293 is consistent with the Charter of Rights and Freedoms. The second will seek clarity on the Criminal Code provisions of Section 293. I am confident, given the importance of this matter, the court will agree to hear the questions," De Jong added.

By taking the questions to the B.C. Supreme Court for a ruling, in what's called a reference, the Crown will be able to call witnesses to put a human face on the crime of polygamy, he said.

"British Columbians and Canadians deserve and want to know whether valid laws are in place that prohibit polygamous relationships, particularly when those relationships involve minors. I am asking the court for its direction so the justice system, in B.C. and in Canada, can address the serious social harms that can result from the practice of polygamy," De Jong said.

The Criminal Code's prohibition on polygamy could be held to violate the constitutionally entrenched freedom of religion, or possibly another charter right.
3 prosecutors too many

De Jong's move follows a serious legal setback for the provincial government last month when B.C. Supreme Court Judge Sunni Stromberg-Stein ruled that former attorney general Wally Opal did not have the authority to appoint a new special prosecutor to consider the cases of Winston Blackmore and James Oler of Bountiful.

Two previous special prosecutors had already recommended no charges against the men, and instead advised the Crown to first seek a legal opinion from the courts on the constitutionality of Canada's anti-polygamy laws before trying to press charges.

But Oppal, who was attorney general until he lost his legislature seat last May's provincial election, persisted in his efforts to bring the case to trial and apppointed a third special prosecutor, Terrance Robertson, who brought the case to court.

Blackmore and Oler then successfully petitioned the court to stay the charges, arguing that the B.C. attorney general had gone "special prosecutor shopping" until he found someone who would go ahead with charges.

Special prosecutors are used in B.C. to replace regular Crown counsel in politically sensitive cases to avoid the possibility of political interference.

Blackmore and Oler lead two factions of the Fundamentalist Church of Jesus Christ of Latter-day Saints based in the southeastern Interior community of Bountiful. They were arrested earlier this year and charged with one count each of breaching Section 293 of the Criminal Code — which bans polygamy — by entering into a conjugal relationship with more than one individual at a time.

The charges against Blackmore, 52, were linked to his alleged marriages to 19 women dating back to May 2005. The charges against Oler, 44, were linked to his marriages to three women dating back to November 2004.

This article was found at:



The Vancouver Sun - October 23, 2009

At last, the B.C. government makes the right move on polygamy

By Daphne Bramham | Vancouver Sun

Finally, Canadians might get clarity on whether outlawing polygamy is a justifiable limit on religious freedom.

As early as today, the B.C. government will file a request asking the B.C. Supreme Court to rule on two issues.

- Is the anti-polygamy section of the Criminal Code consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

- What are the necessary elements of the polygamy offence in the Criminal Code? Does the law require that the polygamous conjugal union involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence?

These questions are being asked because of the fundamentalist Mormon community of Bountiful in southeastern British Columbia. Two of Bountiful's leaders -- Winston Blackmore and James Oler -- were arrested and charged earlier this year with one count each of polygamy.

Blackmore's indictment included the names of 19 women, nine of whom were 18 or younger when they married. The youngest was 15.

The charges were quashed last month by a B.C. Supreme Court judge, who ruled that former attorney-general Wally Oppal erred in hiring a second special prosecutor who laid the charges only after the first one had recommended that the law be referred to the B.C. Court of Appeal to determine its constitutionality.

What's different now is that Attorney-General Mike de Jong is taking a different and surprising route to the Supreme Court. It's not clear whether this has been done before; de Jong wasn't sure.

By going first to the B.C. Supreme Court -- instead of the Court of Appeal as both the first special prosecutor Richard Peck and another outside adviser, Leonard Doust, recommended -- witnesses can be called to give evidence and talk about what life is like in a polygamous culture.

Getting evidence into the record was the reason that Oppal -- a former appeal court justice -- deemed it important to reject both Peck's and Doust's recommendations. Like the Supreme Court of Canada, the Court of Appeal does not hear evidence.

But the evidence is important because the court is being asked to determine whether outlawing polygamy is a justifiable limit on religious freedom.

Without evidence, Oppal feared the case would simply pit legal academic against legal academic.

Polygamy, according to the United Nations, is inherently harmful to the rights of women and children. For Canada's polygamy law to be upheld, the B.C. government must prove that.

Although this is not a prosecution of individuals or even a particular group, intervenors will be able to make their cases and even call witnesses.

De Jong expects that the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), which is the largest fundamentalist Mormon group in North America, will be notified and may want to participate.

It also wouldn't be surprising if one or more Muslim groups intervened, since polygamy is also part of Islam's religious doctrine.

Other potential intervenors include the West Coast Legal Education and Action Fund and the B.C. Civil Liberties Association.

For the past 17 years, polygamy has effectively been legal in British Columbia because the B.C. government refused to prosecute Blackmore and Oler's father, Dalmon, fearing that the law may be unconstitutional.

Clearly, the government's view has changed. But in the intervening years, Bountiful's population tripled to 1,200. It may triple again in the years it will take before this case inevitably reaches the Supreme Court of Canada.

Still, de Jong's decision is both wise and welcome.

The shame is that it took so long to come to it.

This article was found at:



The Province - B.C., Canada October 22, 2009

Backgrounder: History of legal proceedings on polygamy in B.C.


• Allegations of polygamy in the Fundamentalist Latter Day Saints community of Bountiful are forwarded to RCMP and Attorney General’s office. RCMP investigates and provides a report to Ministry of Attorney General criminal justice branch. The branch concludes Sec. 293 is in conflict with Charter of Rights and Freedoms Sec. 2(a), guarantee of freedom of religion. Charges are not approved, as it is decided there is no substantial likelihood of conviction.


• Former Chief Justice Allan MacEachern advises the ministry Sec. 293 is likely in conflict with Sec. 2(a) of the Charter and would be struck down if a prosecution was undertaken.


• Former Attorney-General Geoff Plant writes to his federal counterpart asking for a review of whether Sec. 293 should be replaced with “legislation that will better respond to the inappropriate use of a power imbalance within a community designed to encourage young women to enter into sexual relationships through a form of marriage.” Former federal Justice Minister Martin Cauchon replies, “repealing the prohibition of polygamy in the Criminal Code may violate the equality rights of women in Canada, and would affect Canada’s international commitments.” Cauchon pledges his department’s support in upholding Sec. 293 against a constitutional challenge.


• RCMP forward a report to the criminal justice branch on recent investigations into alleged criminal misconduct in Bountiful. The report recommends charges of polygamy and sexual exploitation. Charges are not approved, as senior Crown counsel agrees there is no substantial likelihood of conviction.


• Former Attorney-General Wally Oppal issues a directive to the criminal justice branch May 31, resulting in the June 6 appointment of Richard Peck, QC, as special prosecutor. Peck’s July 25 report concludes while Sec. 293 is constitutionally valid, the issue of constitutionality would be most efficiently resolved through a reference question to B.C. Court of Appeal. Peck finds there is no substantial likelihood of conviction on all non-polygamy offences, including charges of sexual exploitation. On Sept. 6, Oppal directs the branch to appoint Leonard Doust, QC, to review Peck’s analysis and conclusion that a reference was preferable to a prosecution on the polygamy charges themselves.


• Doust’s March 20 report also recommends a reference question to B.C. Court of Appeal. Oppal directs the branch to appoint special prosecutor Terry Robertson, QC, to conduct a charge assessment review of the most recent police investigation into Bountiful. Oppal argues Sec. 293 is a valid law that should be enforced. Robertson is appointed June 2.


• Robertson charges Bountiful community leaders Winston Blackmore and James Oler Jan. 7 with one count each of polygamy. Robertson’s decision to proceed with a criminal prosecution is quashed Sept. 23 when B.C. Supreme Court rules Peck’s decision not to proceed with a prosecution was final and binding on Attorney-General Oppal. Consequently, the Supreme Court justice quashed the appointment of Robertson as a special prosecutor and quashed his decision to approve charges in this matter.

• Attorney-General Michael de Jong announces Oct. 22 the ministry will not appeal the Sept. 23 ruling, but will ask B.C. Supreme Court to respond to two reference questions on Sec. 293’s constitutionality.

— Source: Government of B.C.

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