Many people hoped for a conviction in BC Supreme Court on the charges against Winston Blackmore and James Oler, two Mormon men who admit that they have numerous wives, putting them in contravention of the Criminal Code.  However the Court refused to let the case proceed because the provincial government acted outside the law in pursuing the prosecution.

The offence of polygamy was written in to the Canadian Criminal Code in 1892 to keep Mormons and former Mormons out of Canada, on the assumption that they would stay in the US where the practice was more or less accepted.

As the Globe and Mail reported, the ruling Wednesday stunned those who wanted to see these polygamists tried and convicted in Canada.  ‘ “I’m absolutely devastated. I’ve been crying so hard. I can’t find words to describe how I feel,” said Nancy Mereska, co-ordinator of a group called Stop Polygamy in Canada.  The polygamists will see this as a great victory. … My God! My God! My God! My heart is broken!” she wrote in a blog posting.’ (Globe and Mail, September 26, 2009).

In fact this is not so much a victory for polygamy as a failure of the government to follow the law rather than politics in the exercise of the government power to charge people with crime.

Wally Oppal is the real author of this decision. As Attorney General he failed to take into account two important legal considerations:

1. In British Columbia the decision to prosecute a particular case rests not with the Attorney General but with the Assistant Deputy Attorney General responsible for prosecutions or with a special prosecutor appointed by the Assistant Deputy Attorney General (ADAG).  This requirement, unique to BC, was legislated in the late 1980’s in response to concerns about political interference by the Attorney General in prosecutions.  If the Attorney General or Deputy Attorney General wishes to issue a directive respecting a prosecution to the assigned prosecutor or a special prosecutor either can but that directive must, if requested by the ADAG, be in writing and be made public.  But the act states “the decision of a special prosecutor with respect to any matter within his or her mandate is final”.
2. In Canada, all laws, including the Criminal Code, are subject to the Charter of Rights and Freedoms, and prosecutors must not proceed with prosecutions if they conclude there is little likelihood of a conviction because criminal law is in conflict with the Charter.

In the face of these important considerations Oppal nevertheless decided to give way to a more important political consideration – pressure from the Liberal Caucus and the Cabinet to go after the men.  There has for a number of years been public concern from certain quarters about male Mormon leaders entering into multiple marriages with young women from the tightly knit and highly controlled community of Bountiful.  With a provincial election drawing near and his Assistant Deputy having decided it would be impossible to successfully prosecute the two most powerful leaders of the community for polygamy because of the Charter, the Attorney General asked for a special prosecutor to try to get a different result.  The first decided not to proceed directly with a prosecution.  Not happy with that, Oppal sought another special prosecutor who recommended the same thing, suggestion that the Charter issue first be addressed by a reference to the BC Court of Appeal..  Concerned that political critics would not be satisfied with this, Oppal went shopping for a third, this time finding one willing to prosecute.  But the Court found that since his own legislation requires the first special prosecutor to carry any prosecution, neither of the following two, including the one who did prosecute the case, had the power to do anything.

The basic lesson here is that the Attorney General and the government cannot put politics before the law.  At the very least he had an obligation to go the legislature and have the law changed.  He did not want to do that.  That would be bad politics as well.  So to give the political impression that he was vigorously acting, he recklessly proceeded as he did.  It was all a charade, and seriously undermines any possible future prosecution of allegations of sexual exploitation against these two men.

What next? The Government could repeal the legislation and return the power to direct prosecutions to the Attorney General.  Or the Government could make a reference to the Court of Appeal asking for a decision on the constitutionality of the criminal code prohibition on polygamy and ask for guidance on how a law might be drafted to prohibit the practice where it involves young vulnerable women.  Or it might prosecute the two men on charges of sexual exploitation and abuse of vulnerable underage women.

Whatever it does the government must recognize that freedom of religious practice is protected in the Charter.  Arguably the practice of polygamy is part of this protected freedom, since polygamy is recognized as part of Mormon beliefs and is a sanctioned practice in that religion.

However, contrary to popular belief, Charter freedoms are not absolute.  They can be interfered with or infringed by laws if the exercise of the freedom negatively affects others, provided the infringement is reasonable and the least intrusive way to deal with the problem.  The courts frequently accept reasonable efforts to protect others as a justification for infringements of freedoms.  However the practices in and of themselves must be the cause of the harm to others. The question any court will ask is whether the practice of polygamy in this particular Mormon sect causes the harm to young dependent women, or are the harmful practices in this case multiple sexual relations with underage and vulnerable women?  If the latter the courts are likely to say that there is no justification for banning polygamy on this basis.  This is referred to as the justification test.  And it appears reasonable. After all, having multiple sexual partners is not illegal generally, however much people may disapprove.

If the problem is sexual relations with young and vulnerable women, then the government is most likely to be successful by charging the men with sexual offenses under the Criminal Code.  In 2006, the RCMP recommended that charges be laid under the sexual exploitation provision of the Criminal Code, which prohibits an adult from having sex with someone between age 14 and 18 when the adult is in a position of authority.  The government did not follow that advice.

The government says that it is still considering further action.  Let us hope that now it proceeds in accordance with the law and with an understanding of the Charter.  It is time to stop playing politics with this case.  It is time to be serious about prosecutions.  The power and resources of government and the courts should not be used to pursue anyone just to satisfy political pressure.  That brings both the law and the government into disrepute.  That is exactly what Mr. Oppal has done.   Shame on him.  And shame on the members of the BC Legislature.  There was not one criticism of this reckless behavior of the government in the legislature last week, even though it threatens to free these two men from any potential punishment for their alleged behavior.