Final arguments coming Monday in landmark polygamy trial
As an army of lawyers debate the future of Canada's law against polygamy in a Vancouver courtroom, the son of the B.C. attorney general who sparked the landmark case has returned from his college classes with some questions of his own.
Wally Oppal was the first attorney general in the province to pursue polygamy charges against the leaders of Bountiful, an insular polygamous commune in southeast B.C. that has been under scrutiny from police and prosecutors for more than two decades.
A few months after the charges were laid against Winston Blackmore and James Oler in early 2009, Oppal lost his bid for re-election. Later that year, the prosecution fell apart when a judge threw out the charges, setting the stage for the constitutional hearings that will return to a Vancouver courtroom this week for final arguments.
Oppal may no longer be involved in the case, but his 21-year-old son, Josh, has brought the debate right into his living room. The former attorney general says his son came home from his classes at Kwantlen Polytechnic University with the very question the court will have to examine.
"He raised the question: 'What business do you have of interfering with the rights of three adults who wish to be involved in this type of relationship?"' recalled Oppal in a recent interview.
"It's a valid question to ask."
Not just valid. It's the crux of what the court must decide.
On one side are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a polygamous sect that lives in Bountiful, civil liberties advocates and supporters of so-called polyamorous relationships. They argue the state has no business in the bedrooms of the nation, and violates the charter guarantee of religious freedoms of those for whom multiple marriage is a tenet of their faith.
On the opposite side are the federal and provincial governments, women's rights groups and self-described "survivors" of polygamy, who insist polygamy inevitably leads to sexual abuse, child brides and human trafficking -- crimes that justify outlawing the practice.
Observers believe the case is ultimately headed to the Supreme Court of Canada, regardless of what the B.C. court decides.
Oppal said he has no doubts about which is the correct answer.
"That's what I was arguing with my son about, you have to look at this in a global sense, the harmful effects of polygamy," he said.
"And you've heard some evidence about that, the abuse of women and children, the fact that the underlying philosophy of a polygamous relationship is demeaning to women."
Soon after he took office in 2005, Oppal asked the RCMP to open a new investigation into Bountiful, and sought outside legal opinions about how to proceed.
The RCMP recommended charges, but the legal experts did not. Like others before them, they raised concerns about the constitutionality of the law, and instead suggested asking the courts to decide whether the law was consistent with the Charter of Rights and Freedoms.
Undeterred, Oppal appointed yet another special prosecutor, who finally sided with him.
The Mounties swept into Bountiful in January 2009 and arrested Blackmore and Oler, charging each with practising polygamy.
A judge later agreed with the men's lawyers that Oppal was improperly "shopping" for special prosecutors. The charges were stayed.
In hindsight, Oppal said it probably would have been easier to simply launch a reference case, which is eventually where the issue ended up. Still, he's unapologetic.
"I was shopping, no question about that," said Oppal. "I think the attorney general, as the chief law officer of the province, has the right to decide who should be prosecuted, who shouldn't be prosecuted, and how you do that. But the court told me I'm wrong, so I've got to live with that."
It was a dilemma that faced a series of attorneys general before him, who were all equally reluctant to pursue polygamy charges in Bountiful, where, for all their secrecy, residents don't deny their polygamous way of life.
One such attorney general was Colin Gabelmann, who held the position under an NDP government in the early 1990s. It was under his watch that officials from the province's Criminal Justice Branch publicly announced they wouldn't pursue charges because, in their opinion, the law was unconstitutional.
Nearly two decades later, Gabelmann said his failure to launch a prosecution wasn't for lack of trying.
The RCMP did not have enough evidence to support charges unrelated to polygamy, such as sexual abuse, said Gabelmann. It's a problem cited by governments arguing in favour of the law: polygamous wives, including young teenagers, are reluctant witnesses.
Repeated legal opinions, including from a former judge, all came back with the same answer.
"An attorney general always has the right to overrule his or her advisers, but to do so in the face of absolutely overwhelming and unanimous opinion would be to really launch into the political realm, rather than the legal realm, and I refused to do this," said Gabelmann.
"I didn't treat it cavalierly. We treated it with a great deal of intensity and concern."
Gabelmann believes the case currently before the court will help clear up decades of uncertainty around the law, while answering important questions about the limits of religious freedom.
"Society deserves an answer and the people who've been abused deserve an answer," he said. "It would be good to put it all behind us with the feeling of security around the whole question of the potential abuse so we can all feel that won't happen. "
For Oppal, the eventual court decision still might not settle the debate for him and his son, who is considering a law career.
"I encourage him to debate these things with me. This is not a black and white argument, that's why we're here," said Oppal.
"But at the end of the day, I think I'm right."