Canadians and the justice system need clarity on whether or not polygamy is a crime, British Columbia's attorney general said Thursday in announcing that he will ask the B.C. Supreme Court for an opinion on the federal law barring multiple marriage.
Mike de Jong said the government has decided to seek the opinion rather than appeal last month's court ruling that quashed polygamy charges against the leaders of a controversial polygamous religious sect in southeastern B.C.
Joe Arvay, the lawyer for one of the men, Winston Blackmore, said his client wants to participate in the hearing, to make sure the court hears his side of the story.
"I would think that Mr. Blackmore would want to participate in the process so long as the process is fair, and the process will only be fair if the (case) is able to make sure all of the relevant facts are put forward to test the constitutionality of the law, and it will also only be fair if the government provides funding for his involvement in the litigation," said Arvay.
Arvay said he and Blackmore support the government's decisions to test the polygamy law in court and not to appeal last month's court ruling quashing the charges against Blackmore and Oler.
"It's about time the government is doing what it is doing," he said.
Justice Minister Rob Nicholson issued a statement saying Ottawa, too, intends to participate in the B.C. action to ensure the law against polygamy in Canada is upheld.
De Jong said the court reference case, which he intends to file as early as Friday, is the preferred route to "getting to the very heart of the matter, which is whether or not polygamy is a crime in Canada."
Earlier this year the attorney general's ministry announced the polygamy charges against Blackmore and James Oler, the leaders of the polygamous sect in Bountiful, B.C. Blackmore was accused of having 19 wives and Oler three.
The men said the law is a violation of their charter right to religious freedom. Blackmore also said the charges were a political stunt by a government gearing up for an election last spring.
De Jong said taking the question to the Supreme Court is consistent with recommendations the province has received by previous special prosecutors.
"This is not a prosecution," he said.
He said the province will ask two questions of the B.C. Supreme Court: Is section 293 of the Criminal Code of Canada, the section that bars polygamy, consistent with the Constitution and Charter of Rights and Freedoms and what role does the law have in governing relationships between both consenting adults and relationships with people who are not yet adults.
There have been allegations in the Creston-area community of Bountiful that teenage girls have been married to middle-aged men, and even been sent to the United States to marry older men in sister sects south of the border.
De Jong said the B.C. government will be arguing in support of the law outlawing polygamy.
"We will be asking the court to find that section 293 is a valid law," he said. "We believe that polygamy is against the law and should be against the law."
Nicholson said British Columbia can count on Ottawa's support in court.
"The practice of polygamy has no place in modern Canadian society," he said in a statement.
Blackmore and Oler are leaders of two separate factions of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway sect of the mainstream Mormon Church, which renounced polygamy more than a century ago.
The RCMP have launched numerous investigations into Bountiful since 1990, but prosecutors have repeatedly shied away from laying charges until former B.C. attorney general Wally Oppal proceeded with polygamy charges against Blackmore and Oler despite earlier legal opinions that the polygamy issue should be referred to the court as a test case.
Last month, B.C. Supreme Court Justice Sunni Stromberg-Stein ruled Oppal did not have the jurisdiction to appoint a second special prosecutor to consider charges against the men, after the first special prosecutor recommended against charges.
The process left a perception of political interference, the judge wrote.
"The Attorney General upset the critical balance that. . . should be kept between political independence and accountability," said the written judgment.
De Jong said he supported his predecessor's decision to proceed with criminal charges, but now believes the reference case route will determine more quickly if polygamy can be successfully prosecuted as a crime in Canada.
