Canada: Attorney-General appoints lawyer to revisit polygamy report

B.C.’s Attorney-General has appointed power lawyer Leonard Doust — one of 17 lawyers on the Air India prosecution team — to take a more “aggressive approach” in reviewing allegations of misconduct in the polygamist community of Bountiful.

Wally Oppal directed the Criminal Justice Branch on Friday to retain Doust to review the decision of special prosecutor Richard Peck.

Last month, Peck recommended no charges be laid against Bountiful members because there was not a “substantial likelihood of conviction.”

Oppal said Friday he wanted a second opinion on whether charges could be laid — or if they should follow Peck’s recommendation that the constitutionality of polygamy law be determined through a reference to the B.C. Court of Appeal.

“It’s no secret that I want to see a more aggressive approach,” Oppal said. “Obviously I think [polygamy] is demeaning to women; it runs contrary to all our values. The whole idea of women being treated as property is abhorrent. . . . I don’t think any reasonable-thinking Canadian favours polygamy.”

Peck was appointed on May 31 by assistant deputy attorney-general Robert Gillen to determine whether there were potential charges relating to polygamy, or any offence of a sexual nature.

He reported sexual exploitation charges should not be laid because there wasn’t enough evidence for a conviction. He also considered other sexual and marriage-related offences but determined none of them was applicable.

A prosecution would likely face a number of obstacles, he said, and the issue would best be dealt with by the BC Court of Appeal. At issue is whether the constitutional guarantee of religious freedom trumps the anti-polygamy section of the Criminal Code.

Polygamy is illegal in Canada — it was banned in Canada’s first Criminal Code, in 1892 — but prosecutions are rare.

“My view is that the public interest will best be served by an authoritative and expeditious judicial resolution of the legal controversy surrounding polygamy,” Peck said. “The integrity of the legal system suffers from such an impasse, and an authoritative statement from the courts is necessary in order to resolve it.”

Oppal disagreed. “If we prosecute these people, we’d be in the position to have the facts before the courts and let them raise the constitutional defence.”

He said that while he was doing a talk show on Friday, a member of Bountiful called in to ask why it was his business what the community did. “They’re sort of daring us to prosecute,” Oppal said.

Bountiful is home to about 700 fundamentalist Mormons who practise a polygamous lifestyle.

Most North American polygamists follow Mormon founder Joseph Smith’s revelation that only men with three or more wives can reach the highest realm of heaven. They believe in assignment marriages, in which the prophet or church elders determine which man a woman will marry.

Oppal said Doust was chosen because he is highly regarded, but both he and Peck are “excellent lawyers.”

In 2005, Doust was called in to examine whether criminal contempt charges were warranted against the striking B.C. Teachers’ Federation members. He had also represented former Canuck Todd Bertuzzi.

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