Vancouver Sun - Canada April 13, 2011
Court must clearly define polygamy if law upheld: lawyer
By Daphne Bramham, Vancouver Sun columnist
VANCOUVER -- If Canada's polygamy law is upheld, the court must clearly define the practise and spell out what polygamists must do to comply with the law, the lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints said Wednesday.
Robert Wickett noted that when special prosecutor Richard Peck recommended a constitutional reference case to determine whether the law is valid, he did so because he believed that the fundamentalist Mormons in Bountiful needed fair notice that the status quo had changed.
In 1992, the B.C. government declined to prosecute two men from Bountiful because it had legal opinions suggesting that the polygamy law breached the constitutional guarantee of religious freedom and possibly the guarantees of freedom of association and expression.
As a result, there were no polygamy charges laid until 2009 when then-attorney general Wally Oppal decided that the best way to test the law was within the context of a criminal trial. He hired another special prosecutor who agreed. Winston Blackmore and James Oler -- two of Bountiful's leaders -- were subsequently charged with one count each of polygamy. Those charges were stayed after a judge determined that the second prosecutor was improperly hired.
Wickett made the comments Wednesday in his closing argument in the constitutional reference case that's being heard by Chief Justice Robert Bauman of the B.C. Supreme Court.
However, Wickett argued that the law ought to be struck down because it doesn't criminalize the conjugal relationship, it criminalizes the specific intent to agree to a multi-partner, conjugal relationship.
Section 293 of the Criminal Code says: "Everyone who practises or enters into or in any manner agrees or consents to the practice or enter into any form of polygamy, or any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or celebrates or assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship . . . is guilty of an indictable offense."
Under that definition, Wickett said the law creates "a crime of status."
A Bountiful man who has two wives and their children in separate houses is guilty because he treats it as a lifelong commitment and proclaims it to be a marriage.
But, he said, a man who is not lawfully married could live with two women, have children, share expenses and support one another and not be a criminal because they have not agreed to treat the relationship as enduring or binding.
Equally, Wickett said, sisters who live together, support each other and agree to treat their relationship as enduring, would be criminals.
The FLDS lawyer also accused lawyers for the attorney-general of B.C. and the Christian Legal Fellowship of stereotyping the women of Bountiful as victims unable to make decisions on their own. He urged the chief justice not to give any consideration to that characterization, adding that it is stereotyping that "would not be seen or countenanced with any other community -- aboriginal, religious or otherwise."
He also told the court that the church does not condone or excuse any criminal acts against children. The majority of FLDS members, he said, are hard-working, law-abiding citizens and it would be wrong to visit the crimes of some on an entire faith or an entire community.
In making his decision, Wickett urged the chief justice to be cautious with evidence submitted late in the trial listing 31 under-aged girls who were allegedly trafficked between Canada and the United States by their fathers and brothers to become brides of older men. Although lawyers for the attorney-general of B.C. say there are church documents and the church prophet's diaries corroborating the list, Wickett said the evidence is based on hearsay.
But if the evidence is true, Wickett said there are other criminal laws available to deal with that. The polygamy law, he said, is "utterly unnecessary to deal with those harms."
What the FLDS wants, he said, is that the polygamy law be struck down as inconsistent with the Constitution's guarantees of religious freedom, freedom of association and liberty.
The case resumes on Friday when the lawyers for the attorneys general of B.C. and Canada will have a chance to rebut the closing arguments of those who favour striking the law.
This article was found at:
http://www.vancouversun.com/life/Court+must+clearly+define+polygamy+upheld+lawyer/4610625/story.html
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The Canadian Press - April 13, 2011
Don't punish polygamists of Bountiful, B.C., for the sins of a few: lawyer
By James Keller, The Canadian Press
VANCOUVER — The polygamous families living in Bountiful, B.C., shouldn't be ripped apart because some in the community may have committed crimes, a lawyer for the isolated religious sect told court Wednesday.
Robert Wickett, who represents the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS, didn't deny the allegations of abuse, child brides and human trafficking that have become central to the debate about whether polygamy should remain illegal.
Instead, Wickett said if some members of the community have committed crimes, only they should be punished for them.
"It is not the position of the church that criminal acts, including child abuse or other crimes, that may have been committed in the community are to be excused or condoned," said Wickett said during the final week of arguments in B.C. Supreme Court.
"This church, like any other, is comprised of a vast variety of people. Most are hard-working, law abiding citizens. Some may have committed crimes, but it would be wrong to visit the crimes of some upon an entire community."
The landmark case is examining whether Canada's laws against polygamy are constitutional.
It was prompted by the failed prosecution in 2009 of two men from Bountiful, a community of about 1,000 people near Creston, B.C., not far from the Canada-U.S. border. Unlike the mainstream Mormon church, which renounced polygamy more than a century ago, followers of the FLDS believe plural marriage will benefit them in heaven.
The court has heard that about 100 residents in Bountiful are husbands and wives in polygamous marriages.
Wickett said if the law is upheld, those families would have two choices: they could either voluntarily end their marriages, in some cases separating children from their parents, or face criminal charges.
"I urge you to consider the impact of those inevitable prosecutions upon the families in Bountiful," Wickett told Chief Justice Robert Bauman.
The law would "dismember their families."
The provincial and federal governments have argued polygamy inherently causes a long list of harms, including abuse, the trafficking of young girls to be married, substandard education and the casting off of young boys. The governments have insisted all are present in Bountiful.
The court has heard shocking allegations including the marriages of teenage girls, some as young as 12, to much older men in the United States, as well as American teens being moved to Canada to marry men in Bountiful.
Former residents of Bountiful and its sister communities in the FLDS recounted stories of sexual and physical abuse, forced marriage and child labour.
Wickett made no attempt to refute those allegations, but he said upholding the polygamy law is not the answer.
"If the allegations are true, they should be dealt with according to the available laws," he said, referring the cross-border marriages. "Section 293 (of the Criminal Code, which prohibits polygamy) will play no part and is utterly unnecessary to deal with such harms."
Wickett also questioned the claim that polygamy itself is to blame for cases of alleged abuse within Bountiful and the FLDS.
He noted the court also heard from other fundamentalist Mormons, including women currently living in Bountiful, who testified they were happy with their lives and freely chose to live in polygamous marriages.
"The negative experiences of some within the FLDS or Mormon polygamy generally are not the experiences of all," said Wickett.
"They're all polygamists. The differences in their experiences relate to the behaviour of individuals within the community and within their relationships."
The community has been under the scrutiny for two decades, but police and prosecutors had resisted laying charges over concerns the law was unconstitutional.
That changed in 2009, when Winston Blackmore and James Oler were each charged with practising polygamy. The charges were thrown out later that year.
Blackmore and Oler each lead separate, divided factions within Bountiful. Wickett represents the side aligned with Oler, while Blackmore's congregation has boycotted the hearings altogether.
The court has heard Blackmore has as many as 25 wives and more than 130 children, while Oler is believed to be married to five women.
Both Blackmore and Oler were implicated in FLDS records seized in Texas that outlined more than 30 cross-border marriages involving teen girls.
Oler and Blackmore were each alleged to have travelled to the United States to marry children, and both men were also accused of bringing their own teenage daughters across the border to be married.
This article was found at:
http://www.google.com/hostednews/canadianpress/article/ALeqM5jWseOf8pU87Asvn7xLrevvT5j51w?docId=6555207
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