VICTORIA - The B.C. government is again being urged to ask the B.C. Court of Appeal to decide whether Canada's criminal laws against polygamy are constitutionally valid and able to withstand a court challenge on the grounds that multiple marriages fall under the right to freedom of religion.
Charging members of a polygamist colony in Bountiful, B.C., would take longer and be less conclusive than referring the matter directly to the B.C. Court of Appeal, and eventually likely to the Supreme Court of Canada, says the latest in a string of legal opinions provided to the provincial criminal justice branch.
Vancouver lawyer Leonard Doust was asked by B.C. Attorney General Wally Oppal to take yet another look at the issue after a special prosecutor concluded last September that a court reference was the way to go.
"Given both practical considerations and concerns about fairness, a reference rather than a prosecution is the most appropriate way to proceed at this time,'' said a statement issued Monday by the criminal justice branch of the B.C. Ministry of Attorney General.
In his report to the branch, Doust says if the Supreme Court of Canada decides the law against polygamy is constitutional, then it will be very clear that anyone violating it will be prosecuted.
"At least, if the Supreme Court of Canada decides that Section 293 is constitutionally valid, then its decision will serve as a very clear notice to all with respect to future conduct, leaving any violations of Section 293 to be fully and properly prosecuted,'' said Doust's report.
Polygamy is prohibited by the Criminal Code of Canada.
Doust's report said launching a reference case is "not an attempt to dodge or delay dealing with the problems in Bountiful. On the contrary, it is the swiftest, most effective and fairest way of beginning to address them.''
Oppal said he prefers taking a polygamy case to criminal court, but it's been difficult getting people to testify and the two similar legal opinions by two of British Columbia's most respected lawyers -- Doust and Richard Peck -- suggest a reference case warrants serious consideration.
"It's no secret that I favoured a more aggressive approach to this, but I'm mindful of the opinions given by two highly respected and knowledgeable lawyers,'' he said. "We're going to have to now decide what the next step will be. But I can tell you, we will do something.''
The report comes on the heels of a raid on a polygamist compound in San Angelo, Texas where state troopers removed 220 women and children last Friday.
Oppal said he will meet with the criminal justice branch to decide the next move on the Bountiful situation.
He said he wanted to lay sexual assault and sexual exploitation charges, but couldn't find any witnesses and "nobody wants to come forward and testify for the Crown.''
"So that left us with the polygamy charges, and, again my preference would have been to lay the polygamy charge and let the defence raise the defence of freedom of religion under the Constitution,'' said Oppal.
Members of the Bountiful colony, located in southeastern B.C., belong to a breakaway sect of the Mormon church and believe that in order to get into heaven, men must marry as many women as possible.
Charges against members of the colony were recommended by RCMP as far back as 1990.
The Crown decided not to proceed based on legal opinions that the polygamy ban would be struck down as an infringement on religious freedom guaranteed under the Constitution.
In 2006, the RCMP again recommended charges, this time under the sexual exploitation provision of the code, which prohibits an adult from having sex with someone between age 14 and 18 when the adult is in a position of authority .
Again, the Crown concluded a conviction was unlikely.
The Church of Jesus Christ of Latter-day Saints, or Mormon Church, renounced polygamy in 1890 and the Bountiful group broke away from it. The Mormon Church excommunicates members who practise polygamy.
Doust said the abuses in Bountiful are unlikely to stop until the question of the polygamy law is addressed.
"Members of the Bountiful community likely will not perceive real jeopardy in practising polygamy unless and until the Supreme Court of Canada conclusively holds that Section 293 is constitutional,'' the review said.
Doust's review of the matter is the latest in several as the government grapples with what to do about the polygamist colony in southeastern B.C.
Critics who want action in Bountiful say the government appears more intent on studying the issue than moving to prevent further abuse.
