No Appeal on Polygamy Case,But Questions Posed

Thursday, October 22, 2009 10:48 AM

Victoria, B.C.- The Province of B.C. is seeking direction from the B.C. Supreme Court on two questions about polygamy.

Attorney General Michael de Jong made the announcement this morning: "I have today asked legal counsel for the Ministry of Attorney General to request the B.C. Supreme Court's direction on two reference
questions on polygamy (Sec. 293, Criminal Code of Canada).

"After discussion with legal counsel, I have come to the conclusion that to appeal the court's ruling quashing the decision to proceed with the recent criminal prosecution would be inadvisable while questions
persist concerning the constitutionality of Section 293 of the Criminal Code of Canada.

"Until Canadians and the justice system have clarity about the constitutionality of our polygamy laws, all provinces, including ours, face a lengthy and costly legal process in prosecuting alleged offences. With that in mind, I have instructed counsel not to appeal the Sept. 23 B.C. Supreme Court decision and, instead, to proceed with the reference questions I will be submitting to the court.

"I am proposing to pose two questions. The first will ask the court to determine if Section 293 is consistent with the Charter of Rights and Freedoms. The second will seek clarity on the Criminal Code provisions of Section 293. I am confident, given the importance of this matter, the court will agree to hear the questions.

"Pursuing a reference through B.C. Supreme Court gives us the option to introduce evidence and witnesses, which will put a human face on polygamy in contrast to the more abstract nature of a reference to B.C.
Court of Appeal. Proceeding by way of reference is consistent with the earlier advice of senior lawyers Richard Peck and Leonard Doust. I would also like to thank special prosecutor Terry Robertson for shouldering the great burden of advancing the case against polygamy in our province.

"British Columbians and Canadians deserve and want to know whether valid laws are in place that prohibit polygamous relationships, particularly when those relationships involve minors. I am asking the court for its direction so the justice system, in B.C. and in Canada, can address the serious social harms that can result from the practice of polygamy."

HISTORY OF LEGAL PROCEEDINGS ON POLYGAMY IN B.C.

1990-1992
* Allegations of polygamy in the Fundamentalist Latter Day Saints community of Bountiful are forwarded to RCMP and Attorney General's office. RCMP investigates and provides a report to Ministry of Attorney
General criminal justice branch. The branch concludes Sec. 293 is in conflict with Charter of Rights and Freedoms Sec. 2(a), guarantee of freedom of religion. Charges are not approved, as it is decided there
is no substantial likelihood of conviction.

2001
* Former Chief Justice Allan MacEachern advises the ministry Sec. 293 is likely in conflict with Sec. 2(a) of the Charter and would be struck down if a prosecution was undertaken.

2002
* Former Attorney General Geoff Plant writes to his federal counterpart asking for a review of whether Sec. 293 should be replaced with "legislation that will better respond to the inappropriate use of a
power imbalance within a community designed to encourage young women to enter into sexual relationships through a form of marriage." Former federal Justice Minister Martin Cauchon replies, "repealing the
prohibition of polygamy in the Criminal Code may violate the equality rights of women in Canada, and would affect Canada's international commitments." Cauchon pledges his department's support in upholding
Sec. 293 against a constitutional challenge.

2006
* RCMP forward a report to the criminal justice branch on recent investigations into alleged criminal misconduct in Bountiful. The report recommends charges of polygamy and sexual exploitation. Charges
are not approved, as senior Crown counsel agrees there is no substantial likelihood of conviction.

2007
* Former Attorney General Wally Oppal issues a directive to the criminal justice branch May 31, resulting in the June 6 appointment of Richard Peck, QC, as special prosecutor. Peck's July 25 report concludes while Sec. 293 is constitutionally valid, the issue of constitutionality would be most efficiently resolved through a reference question to B.C. Court of Appeal. Peck finds there is no substantial likelihood of conviction on all non-polygamy offences,
including charges of sexual exploitation. On Sept. 6, Oppal directs the branch to appoint Leonard Doust, QC, to review Peck's analysis and conclusion that a reference was preferable to a prosecution on the polygamy charges themselves.

2008
* Doust's March 20 report also recommends a reference question to B.C. Court of Appeal. Oppal directs the branch to appoint special prosecutor Terry Robertson, QC, to conduct a charge assessment review of the most
recent police investigation into Bountiful. Oppal argues Sec. 293 is a valid law that should be enforced. Robertson is appointed June 2.

2009
* Robertson charges Bountiful community leaders Winston Blackmore and James Oler Jan. 7 with one count each of polygamy. Robertson's decision to proceed with a criminal prosecution is quashed Sept. 23 when B.C.
Supreme Court rules Peck's decision not to proceed with a prosecution was final and binding on Attorney General Oppal. Consequently, the Supreme Court justice quashed the appointment of Robertson as a special prosecutor and quashed his decision to approve charges in this matter.
* Attorney General Michael de Jong announces Oct. 22 the ministry will not appeal the Sept. 23 ruling, but will ask B.C. Supreme Court to respond to two reference questions on Sec. 293's constitutionality.

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Posted on Thursday, October 22, 2009 10:48 AM in News by 250 News

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Comments

Posted by: caranmacil on October 22 2009 12:42 PM

hmm maybe we could go a little further back in history. To when the law against it was drafted, including a reference to the mormon church specifically. Good luck trying to portray that one as anything but a freedom of religion thing.
I look forward to the day when people are actually smart enough to look at issues honestly, without linking them to other issues in order to strengthen their argument. If one reads the little history lesson provided there is one point that comes across: lengthy criminal investigation of the bountiful community has failed to find sufficient evidence of criminal activity other than plural marriages (which no one has ever denied). Given that fact, why are we constantly hearing about underage marriages and child abuse on this issue ? (ie: "particularly when those relationships involve minpors") Are there not laws protecting minors in this country? Are there not laws regarding the legal age for sex marriage and consent in this country? Why are those laws not sufficient in the case of polygamy?
If the government really feels that all relationships must be 1:1 then i dare them to take that stand. As it is, the laws regarding polygamy could also apply to anyone, married or not who has sex with someone without notifying their former partner (he idea that womens' equality is violated by giving them the opportunity to share a husband is rediculous, especially since polygamy applies both ways (2 husbands, 1 wife). Also, so long as the women are willing, how can it violate their rights. That would be like saying that allowing women to be housewives is a violation of womens equal rights.
Lets be honest, so that maybe the government can be on this issue as well. The issue here is polygamy as practiced in Bountiful. Are women and children forced in marriages? Are they confined in them afterwards? Are the rights of women and/or children being respected? (Or if not respected, at least adhered to as well as in the rest of the population?) The RCMP investigations to date have not found sufficient evidence to lay charges. I could name a few small towns where the result might not be so good. Given a lack of any criminal charges, the province, in its zeal to be seen as doing something sought to prosecute on a charge the accused were already admitting to. Their actual 'opponent ' in the case therefor became the constitution of Canada. Little wonder that there was a shortage of willing prosecutors.
It should be noted that there are various estimates of the actual numbers of polygamous relationships (religious and secular, none official in canada of course) that vary from thousands to tens of thousands.

Posted by: culturevulture on October 22 2009 3:04 PM

It is quite clear even in Winston Blackmore's bible: "No man shall serve two masters." And he represents himself as Christian?

I know of families that make a business out of big families and the income they get from having such large families. This is ridiculous.

Posted by: Loki on October 22 2009 4:36 PM

Look into the history of marriage.
wikipedia has a great article, but don't restrict yourself to only one source.

Essentially, prior to the 20th century, marriage was a contractual arrangement to further family business ties.

Families had businesses, they needed an association with another related business, so they married off the unmarried members of the family. Now the two families could capitalize on their individual strengths.

Love or affection rarely entered into the decision. That is what the mistress was for. This is all contemporary hogwash brought about by a softer, more gentle society.

The modern version of marriage is a contract drawn by the state specifying rights and obligations of the spouses. This is often sanctioned by the church with a religious ceremony that include signing the state contract. Between church and state, what does love have to do with it?

Add to the above the concept of a dowry. A dowry or bride price is a payment from the groom or his family to the brides family. In effect, the purchase of chattel. This is nothing more than a transfer of ownership from the bride's father to the groom and often his family. How do you married women feel about being a possession of your husband? Why would a single girl nowadays even want that? To give up her family name and become the property of a man?

Read your marriage contract to confirm that what I have laid out is fact. The marriage license even says the groom's status as bachelor and the bride is a spinster with the groom being listed first.

So what difference does it make if it is one spouse or many spouse?

This issue has been presented as a case of an illegal polygamous act. The state and the church have no business in my bedroom. It should be a child welfare issue of statutory rape and child abuse.

Posted by: Eagleone on October 23 2009 12:44 AM

Marriage is an institution originally of love that came down from the so-called barbaric Germanic tribes of the ancient world.

The Germanic tribes under Arminius the Saxon in the time when Jesus was just a boy vanquished the legions of Augustus himself at the height of Roman power. So shocked by this calamity in the face of Roman vanity was Rome that she never again tried to occupy German lands... and in fact was later conquered herself by the Germanic tribes of the Goths, the Vandals, the Suevi, Alani and others that brought Christian morality back to the Roman world.

So impressed were the Romans with Arminius that all we know of his exploits today come from the Roman historians and they themselves elevated him to an almost god like status as a moral and righteous leader. Augustus himself was known to spend his last few years banging his head against the wall wailing "Varus! Varus! Give back my Legions, Varus!" referring to the general that lost Rome's most experienced legions to Arminius.

Arminius came along at a time when Rome was the Empire of the world and its governors no longer had virtues because they were beyond reproach... they felt they had the vanity to decide who married who for political and economic reasons and love factored not into their decisions. Roman power was unapproachable and therefore unquestioned... until they tore Thusnelda the wife Arminius (Herman) from him and sold his unborn child into slavery. They created an enemy from a common man whose wrath raised all the Germanic tribes in revolt against Rome for the purity of their women. It was from this that the lesson and rule of war came that never in war is it acceptable to involve the women and children.

The Germanic tribes (most of Northern Europe and Scandinavia) differed at the time from all other races that had the designation barbarian in that all men were considered free and equal, and the respect they paid for their women and the women’s chastity in which they were celebrated for. Its was the institution of this celebrated chastity of the Germanic women that was the foundation of modern day marriage values.

The Germanic tribes in a few later centuries dispatched of the Roman Empire and its yolk on the Christian peoples of Europe spreading their rule through Gaul, Spain, North Africa, Italy, and soon Britain. They left us with us the foundation of Western civilization built upon Roman inspired civic institutions.

So in short marriage is a concept that has been handed down through the generations from the ancient world where it had a foundation in love and the idea that the state may rule over man, but man has a right to the sanctity of the domestic shrine… whose insult upon by the state were grounds for war. Since it was grounds for war on the state, the state needed documentation for legal reasons to honor their obligations to this ancient inalienable right given to man in posterity by Arminius and the revolt he inspired... a revolt that had Arminius choose to march on Rome would have ended the empire then and there in its prime. It’s for this reason that the Romans hailed him as a great man of moral value to the world, despite their humiliations and devastating loses at his incitement.

Posted by: Eagleone on October 23 2009 12:54 AM

Here is a link to background on a great poem (in the setting and the power of message it conveyed) from history written by a Roman historian about a meeting between Arminius on the German side of the Em River and his brother Flavius who had been captured by the Romans as a child on the Roman side... both armies backed away from the river so the two men could talk, and Arminius spoke of his brothers badges to slavery... and thus the poem by the Roman writer:

http://en.wikisource.org/wiki/The_Great_Events_by_Famous_Historians/Volume_2/Germans_under_Arminius_Revolt_Against_Rome
----------------------

"Back, back! he fears not foaming flood
Who fears not steel-clad line:
No warrior thou of German blood,
No brother thou of mine.
Go, earn Rome's chain to load thy neck,
Her gems to deck thy hilt;
And blazon honor's hapless wreck
With all the gauds of guilt.

"But wouldst thou have me share the prey?
By all that I have done,
The Varian bones that day by day
Lie whitening in the sun,
The legion's trampled panoply,
The eagle's shatter'd wing—
I would not be for earth or sky
So scorn'd and mean a thing.

"Ho, call me here the wizard, boy,
Of dark and subtle skill,
To agonize but not destroy,
To torture, not to kill.
When swords are out and shriek and shout
Leave little room for prayer,
No fetter on man's arm or heart
Hangs half so heavy there.

"I curse him by the gifts the land
Hath won from him and Rome,
The riving axe, the wasting brand,
Rent forest, blazing home.
I curse him by our country's gods,
The terrible, the dark,
The breakers of the Roman rods,
The smiters of the bark.

"Oh, misery that such a ban
On such a brow should be!
Why comes he not in battle's van
His country's chief to be?
To stand a comrade by my side,
The sharer of my fame,
And worthy of a brother's pride
And of a brother's name?

"But it is past! where heroes press
And cowards bend the knee,
Arminius is not brotherless,
His brethren are the free.
They come around: one hour, and light
Will fade from turf and tide,
Then onward, onward to the fight,
With darkness for our guide.

"To-night, to-night, when we shall meet
In combat face to face,
Then only would Arminius greet
The renegade's embrace.
The canker of Rome's guilt shall be
Upon his dying name;
And as he lived in slavery,
So shall he fall in shame."

Posted by: duffer on October 23 2009 9:06 AM

I can't imagine why someone would want to be nagged by more than one wife anyway!!!