By Patrick B. Craine

VICTORIA, British Columbia, October 23, 2009 ( – British Columbia Attorney General Michael de Jong announced yesterday that he will be asking the B.C. Supreme Court to decide on the constitutionality of Canada's law against polygamy (section 293 of the Criminal Code).  Canadian Justice Minister Rob Nicholson, further, has pledged his support in defending the law.

The announcement follows the B.C. Supreme Court's decision on September 23rd to throw out polygamy charges against Winston Blackmore and Jim Oler of Bountiful, B.C.  The two men are leaders of rivalling Mormon sects which advocate and practice polygamy.  Blackmore, charged with marrying 20 women, claims to have had 26 wives and over one hundred children, while Oler was charged for marrying two women.

B.C. authorities have long known of the community's polygamous practices and the related abuses against minors and women in the community, but the legal authorities have avoided prosecution, believing that the polygamy law would be judged by the court system to conflict with the Charter right to freedom of religion.

De Jong says that it would be “inadvisable” to appeal the September 23rd decision “while questions persist concerning the constitutionality of Section 293 of the Criminal Code of Canada.”

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

RCMP investigations into the Bountiful sect began in the early 1990s, but charges were not laid then because it was deemed there was “no substantial likelihood of conviction.”

In June 2007, former Attorney General Wally Oppal appointed Richard Peck as special prosecutor to examine the case, who determined that a reference to the B.C. Court of Appeal on the constitutionality of the law was preferable to prosecution.  In September 2007, Oppal appointed Leonard Doust to review Peck's decision, and in March 2008 Doust offered the same recommendation as Peck.

Maintaining that the law should be enforced, Oppal appointed a third special prosecutor, Terry Robertson, in June 2008, who brought charges against Blackmore and Oler in January 2009.

On September 23, however, the B.C. Supreme Court threw out those charges and the appointment of Robertson, determining that Peck's initial decision was final and binding on the Attorney General.

Current Attorney General De Jong has now opted for the course advised by Peck and Doust.  His reference, however, will be submitted to the B.C. Supreme Court rather than the Court of Appeal, because there they will be able to offer evidence and witnesses, “which will put a human face on polygamy,” he says.

De Jong will be submitting two questions to the court.  In the first, he will ask whether the polygamy law is “consistent” with the Charter.  And in the second, he “will seek clarity on the Criminal Code provisions of [that law].”

“I am confident, given the importance of this matter, the court will agree to hear the questions,” 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,” he continued. “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.”

Federal Justice Minister Rob Nicholson has “welcomed” De Jong's action, stating that “the Government of Canada will be an active party in the reference and [will] defend the constitutionality of the Criminal Code prohibition on polygamy.”

“The practice of polygamy has no place in modern Canadian society,” he said.  “The Government of Canada firmly believes that the Criminal Code prohibition against polygamy is consistent with Canadian values as well as compliant with the Canadian Charter of Rights and Freedoms. We strongly believe that this prohibition created by Canada's elected representatives should be upheld.”

See related coverage:

Charges against B.C. Polygamists Dropped 

Same-sex “Marriage” Used as Defense in Canadian Polygamy Case 

The Tragic Stories of Children of Polygamy 


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