VANCOUVER – A special prosecutor has concluded there’s not enough evidence to charge members of a British Columbia polygamist colony with sex offences involving minors, partly because the women involved said they wanted to have sex with the older men.
Attorney General Wally Oppal said the province will instead look at referring the case to the B.C. Court of Appeal before any charges are laid.
“The real issue here is that the number of so-called complainants that we have have all told us that they consented to the act that took place,” Oppal said Wednesday.
At the time the incidents are alleged to have taken place, the age of consent was 14, though it’s now been raised to 16.
“We really have no case as far as sex assaults are concerned,” Oppal said.
So authorities tried to pursue charges that the women had been sexually exploited by a person in a position of trust, but that effort was again thwarted.
“There’s no evidence of exploitation,” Oppal said.
“In fact, it was surprising to me the number of young women who told police that they were the aggressors, that they wanted to have sex with the older men.”
Oppal asked for a special prosecutor to look into the case in May after a months-long review by his ministry’s criminal justice branch concluded there was no likelihood of any conviction on the charges.
Richard Peck agreed that convicting members of Bountiful on sex charges was unlikely.
In his report, released Wednesday, he said he also examined whether the community was in violation of any education laws.
He couldn’t find much.
Peck said it’s time to find out once and for all if Canada’s laws against polygamy will stand.
“I have come to the conclusion that polygamy itself is at the root of the problem,” he wrote.
“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.”
Governments may refer legal questions to a court without anyone actually being charged.
Peck warned that the case would likely end up in the Supreme Court of Canada.
But he said a referral would allow B.C. to get an idea of whether the polygamy law would stand up without having to go through a lengthy trial that would involve defence motions and having to disclose evidence to defendants.
“If the law is struck down, the onus will be on the federal government to develop a new, Charter-compliant legislative solution to the problem,” Peck wrote.
“If the law is upheld, members of the Bountiful community will have fair notice that their practice of polygamy must cease.”
Charges against members of the Bountiful colony, in southeastern B.C., were recommended by RCMP as far back as 1990.
The Crown decided not to proceed based on legal opinions that the polygamy ban would be struck down as an infringement on religious freedom.
In 2006, the RCMP again recommended charges, this time under the sexual exploitation provision of the code, which prohibits an adult from having sex with someone between age 14 and 18 when the adult is in a position of authority.
Again, the Crown concluded a conviction was unlikely.
Oppal appointed Richard Peck as a special prosecutor in May, saying he wanted an outside opinion to be sure.
Peck said in his report he thinks Canada’s anti-polygamy law does not violate the Charter of Rights guarantee of religious freedom.
“There is a substantial body of scholarship supporting the position that polygamy is socially harmful,” he wrote.
“Religious freedom in Canada is not absolute.”
The Church of Jesus Christ of Latter-day Saints, or Mormon Church, renounced polygamy in 1890 and the Bountiful group broke away from it. The Mormon Church excommunicates members who practise polygamy.
Oppal said he personally believes the law against multiple marriages is valid and the referral to the Court of Appeal could be made by the fall.
Aug. 1, 2007