The provincial government will have to decide whether to send to the courts the question of the legality of practising polygamy in Bountiful, after a decision by a senior lawyer was made public yesterday.
Leonard Doust, a senior member of the B.C. bar, agreed with the conclusions of a special prosecutor last year — that having the state pursue polygamy charges against members of the breakaway Mormon sect in the Creston Valley enclave near the U.S. border would likely fail.
Special prosecutor Richard Peck was appointed by Attorney-General Wally Oppal last year to submit a legal opinion on polygamy.
Section 293 of the Criminal Code prohibits “any form of polygamy [or] entering into a conjugal union with more than one person at the same time.” The maximum penalty is five years in prison.
But Mr. Peck found the law likely would not survive a challenge under the Charter of Rights and Freedoms on the ground it infringes the constitutional guarantee to freedom of religion.
Mr. Oppal asked for another opinion from Mr. Doust, who agreed with Mr. Peck. His view was released yesterday.
“The serious misconduct in Bountiful will likely continue until the constitutionality of Sec. 293 is authoritatively decided by the Supreme Court of Canada,” Mr. Doust wrote.
“. . . Given both practical considerations and concerns about fairness, a reference [to the B.C. Court of Appeal] rather than a prosecution is the most appropriate way to proceed at this time,” he said.
Mr. Doust also said that if the high court finds the law unconstitutional, its reasons “will force and assist the government of Canada to consider other, constitutional solutions to the problem of polygamy.”
Despite the legal hurdles the judges and lawmakers would have to clear, Mr. Doust said he feels it would still be “the swiftest, most effective and fairest way of beginning to address . . . the problems in Bountiful.”
The Bountiful residents are part of the Fundamentalist Church of Latter Day Saints, a breakaway sect of the Mormon church, which banned polygamy in the 1890s.
The polygamous community sprang up in Bountiful in the late 1940s.
Home to about 1,000 residents, it is part of the sect led by jailed U.S. polygamist leader Warren Jeffs that saw its Texas ranch raided last week in an investigation into allegations of abuse by a young woman at the compound.
Texas officials have removed at least 219 children and adults from the ranch, which lies about 200 kilometres northwest of San Antonio.
The Province with files from Reuters
Apr. 8, 2008