Apr 21, 2017

Ian Mulgrew: Bountiful polygamy trial reveals spinelessness of politicians

Winston Blackmore, who is accused of practising polygamy, arrives at the courthouse in Cranbrook on Tuesday.
April 20, 2017

The prosecution of Winston Blackmore and James Oler, leaders of rival breakaway sects of the Fundamentalist Church of Jesus Christ and the Latter Day Saints, is a make-work project born of political cowardice.

For a quarter century, the B.C. government has heard legal opinions that the anti-polygamy statute these old goats are charged with breaking is unconstitutional — a 19th–century relic with no place in a modern criminal code.

But in 2005, under increasing pressure over allegations about sexual exploitation in the religious communes in the southeastern corner of the province, then attorney general Wally Oppal decided to criminally prosecute these two. Blackmore reputedly has 24 wives, Oler four.

Ignoring the advice of his own department, three previous attorneys general and those independent legal opinions, Oppal invoked the almost never-used section 293 of the Criminal Code.

At the same time that the HBO show Big Love was delighting audiences with its take on polyamory, Oppal was championing an archaic product of 19th-century bigotry, passed in 1890 to keep Mormons, who then practised polygamy, out of Canada.

This week the former justice, now in private practice, was peddling the line: “Those sections are in there for a very good reason, the protection of women.”

Hogwash. The law was was drafted before women were considered persons. Victorian lawmakers did not pass it out of concern for them or children — they were considered chattel.

The arrival of the Mormons in the 1880s triggered the polygamy and bigamy laws, backed by well publicized threats of rigorous enforcement.

The first judge to examine the Blackmore/Oler case in 2009 tossed it, pointing to nearly 20 years of politics and Oppal’s “prosecutor shopping” — when he appointed a third special prosecutor after the first two recommended against charges.

Undaunted, the province asked then-B.C. Supreme Court Chief Justice Robert Bauman to offer an opinion.

Unfortunately, in his 2011, 335-page door-stopper even the conservative jurist had to acknowledge the section violated religious freedom “in a manner that is non-trivial and not insubstantial.”

Since elevated to Chief Justice of the B.C. Court of Appeal, Bauman also said it wrongly created a risk of the prosecution of children aged 12 through 17. So much for protecting girls.

Still he argued that the law could be excused under section 1 of the Charter because of the pernicious effects of polygamy — “the harm to women, to children, to society and to the institution of monogamous marriage.”

Instead of taking that qualified endorsement to the province’s top bench (the Court of Appeal) or the Supreme Court of Canada for a confirming opinion, the B.C. Liberals continued the crusade.

It has allowed them, when questioned about these issues, to hide behind the excuse that they are before the court.

Special prosecutor Peter Wilson was appointed and relaid the charges.

B.C. Supreme Court Justice Sheri Donegan, a former provincial Crown attorney (until 2010) and lecturer on child protection, is now hearing the evidence.

Pardon me for thinking this entire affair is another black eye for the legal system and the Liberals.

Surely the government cannot constitutionally criminalize consensual adult domestic relationships when the Supreme Court of Canada says they can go to clubs and engage in orgies.

Saturday-night saturnalia is legal while living together puts adults at risk of being thrown in a jail whether or not they are calling it a “celestial marriage”?

This law does not require polygamy to involve a minor or occur in a context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence — only multiple sexual partners.

This law is an unacceptable infringement on fundamental rights guaranteed by the Charter — the freedom to practise one’s religion and to associate in family units with those whom one chooses.

Marriage is about progeny and property: It’s a matter for family law and administrative regulation regarding inheritance and familial fiscal obligations, not the criminal law — which is a punishing broadsword, not a social-engineering scalpel.

If Parliament wants to protect women and children from the supposed evils of polygamy, then politicians should get rid of this dodgy anachronism and pass appropriate laws targeting the specific harms.

“This is a complex social issue,” Bauman said. “Parliament is better positioned than the court to choose among a range of alternatives to address the harms (of polygamy). Even according Parliament a healthy measure of deference, it cannot be said the measure, in this limited respect, is ‘carefully tailored so that rights are impaired no more than necessary.'”

This prosecution only underscores the spinelessness of our politicians to properly address the dysfunctional religious communes or polygamy.

Here we are — millions spent on police investigations, legal fees and proceedings that will likely continue for years to come — spinning our wheels while another generation of children may be growing up damaged.


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