Constitutionality of Polygamy Law to be Decided

Province Refers Polygamy Offence to B.C. Supreme Court

Oct 24, 2009 Arthur Weinreb

B.C.'s Attorney General, Mike de Jong, is referring two questions to the court on Canada's polygamy law, hoping that the law will stand up and end years of uncertainty

On September 24, 2009, Justice Sunni-Stromberg-Stein of the British Columbia Supreme Court quashed the appointment of Terrance Robertson as a special counsel to former Attorney General Wally Oppal. Robertson had advised Oppal to lay polygamy charges against members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS) who practise polygamy in Bountiful B.C.

Robertson was the third special prosecutor that Oppal appointed to examine the same subject matter. The first two, Richard Peck and Leonard Doust, recommended that no charges be laid; they believed that there was no likelihood of obtaining a conviction and recommended that the question of the constitutionality of polygamy be referred to the B.C. Court of Appeal. These counsel also expressed the view that it would be fairer to polygamists than laying criminal charges; if section 293 of the Criminal Code was found to be constitutional, then polygamists would have been warned that their activities were definitely illegal and prosecution would ensue if they did not abandon mulitiple marriage.

Two FLDS Leaders Charged with Polygamy

After Robertson issued his report and recommended that criminal proceedings be commenced, the leaders of Bountiful's two FLDS sects, Winston Blackmore and James Oler were charged with one count each of practising polygamy. But the court accepted the accused's arguments that once the report of the first special counsel Richard Peck was issued, the involvement of a special prosecutor was finished. Peck’s report was found to be final and Justice Stromberg-Stein quashed Robertson’s appointment.

Issue of Polygamy Referred to B.C. Supreme Court

Although the province could not proceed with the criminal charges, the justice refused to quash the actual charges against the two men. The prosecution could have appealed the Supreme Court of B.C.’s decision but on October 22, 2009, Attorney General Mike de Jong announced that he would not appeal. Instead, the A.G. intends to refer two questions concerning the legality of section 293 to the British Columbia Supreme Court.

Is Polygamy Constitutional?

The province will ask the court if the polygamy section of the Criminal Code is consistent with the Charter of Rights and Freedoms. Many legal scholars believe that the criminal prohibition against polygamy offends section 2 of the Charter of Rights that protects freedom of religion. The FLDS maintain that polygamy is central to their religious beliefs. The court may also decide if section 293 of the Criminal Code violates the equality section of the Charter by discriminating against the FLDS by outlawing their marriages.

What Constitutes the Crime of Polygamy?

The second question that de Jong intends to refer is to ask the court to clarify exactly what acts constitute a breach of section 293. That section reads as follows:

(1) Every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into

(i) any form of polygamy, or

(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or

(b) celebrates, assists, or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.

While much of the polygamy debate has centered upon freedom of religion, the Supreme Court of Canada has held that a law that is too vague is also unconstitutional. Canadians have a right to know exactly what acts will put them in jeopardy of criminal sanctions and a law that is too vague violates a person’s right to life, liberty and security of the person under section 7 of the Charter. The court may be asked to define what is meant by “any kind of polygamy” and “any kind of conjugal union”. The term “conjugal union” is not defined in the Criminal Code and proving sexual intercourse is not required nor even intended under section 293(2). What exactly a conjugal union is will have to be defined by the court.

A.G. Wants Witnesses to Testify

DeJong is not following the recommendations of the first two special prosecutors who recommended that questions be put to the B.C. Court of Appeal. The Attorney General decided to refer the questions to the province’s Supreme Court on the theory that the trial court will be more amenable to hearing witnesses and not just legal arguments. The government feels if they will have a better chance of success if witnesses; mainly women who have left the sect because of abuse, are can give evidence on the stand.

No matter what the court decides, the question of the legality and constitutionality of the offence of polygamy will ultimately wind up before the Supreme Court of Canada.

The copyright of the article Constitutionality of Polygamy Law to be Decided in Law, Crime & Justice is owned by Arthur Weinreb. Permission to republish Constitutionality of Polygamy Law to be Decided in print or online must be granted by the author in writing.

Winston Blackmore

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