Deep inside the British Columbia Supreme Court decision to toss out charges against religious leaders in Bountiful, B.C., lays a potential sea change in how the province views the constitutionality of Canada’s anti-polygamy laws.
Justice Sunni Stromberg-Stein decided then-attorney general Wally Oppal superceded his authority, essentially prosecution shopping, when he demanded a third special prosecutor be appointed to review allegations of polygamy at the Bountiful commune. The move followed the first special prosecutor’s recommendation of a test case to decide on the constitutionality of s. 293 of the Criminal Code, Canada’s anti-polygamy law, rather than seeking direct charges. That recommendation was also upheld by the second special prosecutor.
In her decision, Stromberg-Stein noted, “in the attorney general’s view, a valid criminal provision should be enforced.”
B.C. Crown counsel have a two-stage review process before laying charges. The first test is whether or not there is a likelihood of conviction; the second is whether or not pursuing a conviction is in the public interest.
There can be little doubt there is public appetite to pursue charges against the alleged polygamist leaders of the Bountiful commune. The sticking point has always been the likelihood of prosecution.
The B.C. government has long held the belief s. 293 of the Criminal Code would be struck down as contrary to s. 2 of the Charter of Rights and Freedoms — freedom of conscience and religion.
That position was first adopted in 1992 after a review of an RCMP investigation into Bountiful. It was re-affirmed in 2001 by former chief justice Allan McEachern. At the time, the B.C. government sought an amendment to s. 293 from the federal government.
The federal government disagreed with B.C.’s position and told the province it would support any attempt to bring alleged polygamists to justice and that the section was constitutional.
Following his appointment to the attorney general’s post in 2005, Oppal, a retired B.C. Court of Appeal justice, identified the Bountiful issue as troubling. Oppal considered alleged child abuse to be the underlying issue.
Under s. 5 of the Crown Counsel Act of B.C., the attorney general has the ability to direct the province’s criminal justice branch. Oppal sought a review of the polygamy issue, and the branch appointed special prosecutor Richard Peck.
Peck, an esteemed criminal defence lawyer, concluded, “polygamy itself is at the root of the problem. Polygamy is the underlying phenomenon from which all other alleged harms flow, and the public interest would be best served by addressing it directly.”
The direct route would be to once and for all decide the constitutionality of s. 293 through a test case.
In his report, Peck wrote, “Religious freedom in Canada is not absolute. Rather, it is subject to reasonable limits necessary to protect ‘public safety, order, health, or morals or the fundamental rights and freedoms of others.’ Ultimately, in my opinion, there is a good case for upholding [s.] 293 as compliant with the Charter.”
In a November/December 2008 interview with Canadian Lawyer, Peck eluded to his belief that charges should be sought following a successful test case.
He suggested a reference case as opposed to a straight challenge as he felt a challenge could be derailed at several stages and never get to the meat of the issue on the constitutionality of polygamy laws.
Peck also expressed an empathy rarely seen for residents of the commune, saying “they were investigated 17 or 18 years ago, and after that investigation, nothing was done and they’ve gone on and lived their lives in their peculiar belief system.
“To suddenly change this, there was an element of fairness there that concerned me and I thought the reference would be a clean way to get to the core issue, get it dealt with in a fairly timely fashion, and then, as I suspect, it was upheld and found out to be constitutional, everybody would be on notice, and then it is fair game.”
Interestingly, while Stromberg-Stein referenced articles in other publications when deciding Peck’s decision was final, and therefore the unbreakable position of the government, she did not refer to Peck’s comments to Canadian Lawyer.
Perhaps those comments would have lead Stromberg-Stein to order the province to seek a test case. She already concluded Peck’s decision was final.
B.C’s. special prosecution system is the envy of governments across Canada because it is free of political interference.
In her decision, Stromberg-Stein said the major reason for denying the attorney general the right to appoint successive special prosecutors was because of the “perception, if not the reality, of political interference.”
But simply affirming the decision as final doesn’t free it from political interference. A special prosecutor’s decision can only truly be free of such meddling if the province is forced to follow it — which in this instance would be to order a test case.
Clearly, if the ruling has any lasting effect it is perhaps that once and for all the B.C. government can stop hiding behind the religious freedoms argument and deal with those that are alleged to have broken the law.
Peck’s position on the constitutionality of s. 293 is that it would be upheld. This should be the new standard for the province, so it can finally after nearly 20 years, take the position that s. 293 is constitutional.
Kelly Harris is the editor of Canadian Lawyer InHouse. He can be reached at firstname.lastname@example.org