| Polygamy fight Attorney-general Wally Oppal says the practice is abhorrent; to the special prosecutor it's the 'root of the problem' | |
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By Daphne Bramham Vancouver Sun | |
After more than 60 years of ignoring fundamentalist Mormons who are illegally practising polygamy in East Kootenay, the B.C. government may finally do something about it. Attorney-General Wally Oppal is considering referring the anti-polygamy law to the B.C. Court of Appeal, asking it to determine whether the constitutional guarantee of religious freedom renders the Criminal Code offence invalid. During Wednesday's teleconference with journalists, Oppal called polygamy abhorrent and contrary to the Constitution's guarantee of equal treatment of women. Both Oppal and special prosecutor Richard Peck, who made the recommendation for the court reference, believe the anti-polygamy law will be found to be valid because the Constitution also guarantees equality and allows for laws limiting freedoms where there is proven harm to others. What Peck concluded after studying the evidence for two months was this: "Polygamy itself is at the root of the problem. Polygamy is the underlying phenomenon from which all the other alleged harms flow, and the public interest would best be served by addressing it directly." He went on to say, "There is a substantial body of scholarship supporting the position that polygamy is socially harmful . . . Religious freedom in Canada is not absolute. Rather, it is subject to reasonable limits necessary to protect 'public safety, order, health, or morals or the fundamental rights and freedoms of others.' " Even if both Peck and Oppal are wrong and the Court of Appeal finds the law unconstitutional, the government has an automatic right of appeal to the Supreme Court of Canada. And if the Supreme Court determines the law is invalid, Parliament can rewrite it. It's a much quicker way to resolve the question than going to trial and Peck expects a reference could be heard by the Court of Appeal as early as February and within 18 months by the Supreme Court of Canada. What could speed this process along even more is if Ottawa got on side and referred Section 293 of the Criminal Code (the polygamy section) directly to the Supreme Court of Canada. Certainly, Oppal deserves credit if this goes forward. He is the only B.C. attorney-general who has had the will to do anything about Bountiful. Polygamy has not been prosecuted in B.C. There was a recommendation from the RCMP to prosecute several of Bountiful's leaders in 1990. But the B.C. government refused to lay charges. The attorney-general of the day had received several legal opinions suggesting that the polygamy law might be trumped by the guarantee of religious freedom in the 1982 Constitution. For the past 17 years, B.C.'s attorneys-general have hidden behind those legal opinions, which have never been made public. They in effect legalized polygamy in B.C. and in the 17 years, the population of Bountiful has nearly tripled to 1,200. Still, it's hard to entirely exonerate Oppal and Peck and all the others who have stood silently by, too gutless to protect the rights of women and children. It's exasperating and disappointing that no charges will be laid against the men in leadership positions in Bountiful -- the bishops, school principals and superintendents -- who have taken underage girls as wives. One of them, Winston Blackmore, has publicly admitted that several of his more than 20 wives were only 16 and at least one was 15 when they married. And since 1990, his family has grown to include more than 105 children. There is no doubt that teens are still marrying much older men. Oppal acknowledged that Wednesday. The problem, he says, is that all of the young girls interviewed by RCMP during a two-year investigation said they were willing participants and were not under the influence of the much older man who had sex with them. Oppal said that makes prosecution impossible. Peck agreed. In his report, he said there was little likelihood of a conviction on any charges of sexual exploitation, sexual assault, parents or guardians procuring for sexual activity, or trafficking. But the whole point of the Criminal Code section on sexual exploitation is that children under the age of 18 aren't capable of giving consent, particularly if the aggressor is a person in a position of trust or authority. As Debbie Palmer, a former child bride, said, "The child protection law states that a child can't consent. So, it's a moot point to force a child to testify. But that's the problem, they always end up putting the onus on the victim to testify." Alison Brewin, executive director of West Coast Legal Education and Action Fund, was also critical of the decision not to charge. "I suspect that they did not take a particularly creative approach to how the evidence could be used." In domestic abuse cases in Canada, victims don't always testify and still there are successful prosecutions. In Arizona, polygamist pedophiles have been convicted on the strength of former members' testimony about the control exercised by the church's leaders and the lack of choice available to women and men. As disappointing as it is that the men will continue to walk free for now, once the law is clarified there can be no more excuses for not prosecuting. And potential witnesses will no longer have to fear that they are risking everything -- family, friends and community -- only to have the case overturned on constitutional grounds. But the government's responsibility won't end with the court reference or even possible future prosecutions. More must be done to ensure that Bountiful's children are getting an education equal to that of others in Canada. And more needs to be done to ensure that all of Bountiful's residents know not only the limits to religious rights, but the breadth of their individual freedoms. dbramham@png.canwest.com | |
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canada.com Originally published August 2, 2007 | |
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