Bountiful Polygamists OK For Now

 Polygamists in Bountiful, B.C. will not be prosecuted at this time but the question of the boundaries of religious freedom is a big one.  Although polygamy has long been illegal in Canada, prosecutions are rare and convictions extremely unlikely.  Lawyers say it's time to review the law in the criminal code and take steps to reduce the uncertainty that now exists.

 Neal Hall, with files from Daphne Bramham, Vancouver Sun

Published: Friday, August 03, 2007

The legal issue at the centre of the controversial Bountiful polygamous community in southeastern B.C. should be referred to the B.C. Court of Appeal, a special prosecutor recommended in a decision released Wednesday.

Senior Vancouver criminal lawyer Richard Peck -- appointed May 31 as independent special prosecutor to review previous Crown opinions not to lay charges against individuals at Bountiful -- concluded no criminal charges should be laid.

He agreed with four previous Crown prosecutors who reviewed evidence gathered by the RCMP and concluded there was no "substantial likelihood of conviction."

At issue is whether the constitutional guarantee of religious freedom renders the anti-polygamy section of the Criminal Code invalid.

During his assessment, Peck reviewed Sec. 293 of the Criminal Code, which defines polygamy-related offences, and concluded its constitutionality should be determined through a reference question to the B.C. Court of Appeal.

"The legality of polygamy in Canada has for too long been characterized by uncertainty," he said. "The integrity of the legal system suffers from such an impasse, and an authoritative statement from the courts is necessary in order to resolve it."

In response, Attorney-General Wally Oppal said: "Mr. Peck has suggested that we obtain an opinion from the Court of Appeal relating to the legal validity of the charges. Now we are considering whether or not that's an appropriate route to go. . . ."

He said: "I personally disagree [with the previous legal opinions] and I don't think that Canadians condone polygamy.

"I think they find it abhorrent and contrary to the equal treatment of women," he said.

"I don't think right-thinking Canadians believe it is appropriate for anyone to have three or four or five wives.

"But we have to make sure that there is a law in place."

Oppal also said: "All of the witnesses have said that they are not under the influence of anyone. In fact, they said that they wanted to marry and have [sexual] relations. If we were to call a witness, who said that we [the girls] are the aggressors we would not get very far in terms of a conviction."

Asked if the federal government would get involved, Oppal said: "We are prepared to go it alone as far as a reference. But the federal government usually gets involved in reference cases and I would expect they would get involved in this one."

Polygamy has long been illegal in Canada -- it was banned in Canada's first Criminal Code enacted in 1892 -- but prosecutions have been rare.

Benjamin Berger, a University of Victoria law professor and a constitutional expert on religious freedoms, said the court will have to decide the boundary of religious freedom -- enshrined by Canada's Constitution -- and try to balance that with possible harm to members of the community.

The law has to respect the religion of others and differing world views, but those rights are not absolute, he said.

Court decisions involving religious rights have to decide "what kind of activity are we going to tolerate and what kind are we not going to tolerate," Berger said.

"Once you get into harm to children and a fundamental offence to basic equality, I think you are at a limit of religious freedom, but this is a question the courts are going to have to wrangle with."

In 1985, he said, the court struck down the law that prevented Sunday store openings. The Supreme Court of Canada also recently upheld a 12-year-old student's right to wear a ceremonial Sikh kirpan dagger to school in Quebec.

nhall@png.canwest.com

© The Vancouver Sun 2007[/q]