WUNRN
http://www.theglobeandmail.com/news/opinions/editorials/bountifuls-lost-day-in-court/article1300809/
September
25, 2009
Canada - Bountiful
Polygamy should get a full
airing in court. It is regrettable, but that will now have to wait
The question whether polygamy and the Charter of Rights and Freedoms are compatible is a difficult one, but an important opportunity to fully canvass it, in the light of a specific community at Bountiful, B.C., has unfortunately been lost, as a result of a narrow procedural problem.
Madam Justice Sunni Stromberg-Stein set aside on Wednesday the decision of a special prosecutor to go ahead with charges against Winston Blackmore and James Oler.
Deliberations about the alleged polygamy at Bountiful go back to 1990. A number of Crown counsel and retired judges, consulted by the provincial attorney-general, concluded over the years that there was “no substantial likelihood of conviction.” That advice was not based on the evidence, but on the conflict between the Charter right to religious freedom and the Criminal Code's prohibition of polygamy.
There was apparently less consideration of Section 1 of the Charter, of “the reasonable limits” to Charter rights that “can be demonstrably justified in a free and democratic society.” But the core values of Canadian society include human dignity and the institution of marriage, and the prohibition of polygamy is indeed justified.
Some lawyers advised the B.C. government to seek an advisory opinion from the province's Court of Appeal, rather than a trial. Charter issues are not, however, an exercise in purely logical deduction or what the philosopher John Rawls called “moral geometry.” The rich factual setting of life at Bountiful would be highly informative in a polygamy trial.
Overburdened prosecutors might understandably prefer to deal with run-of-the-mill crimes, and not to expend precious time and other resources on constitutional cases that are likely to go up to the Supreme Court of Canada.
Wally Oppal, the former attorney-general, sought an outside perspective by appointing two independent prosecutors in a row. But the statute that provides for this came out of a controversy in 1990 over the investigation of a provincial cabinet minister. An independent prosecutor's decision is final in order to prevent undue political interference – which was not the case with Mr. Oppal's considered opinion in favour of a trial, contrary to the first of the two special prosecutors. This legal machinery that includes the word “final” has now caused the whole process to grind to halt.
Polygamy should get a full airing in court. It is regrettable, but that will now have to wait.
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----- Original Message -----
From: WUNRN
ListServe
To: WUNRN ListServe
Sent: Sunday, February 08, 2009 10:39 PM
Subject: Canada - Polygamy Case - Another Wife Added
WUNRN
Canada -
Polygamy Case - Another Wife Added
CRESTON, B.C. -- One of two Canadian men charged with
polygamy had his charges amended Friday to add another wife to the list of
women he has married, said British Columbia's Ministry of Attorney General.
Winston Blackmore, 52, and James Oler, 44, are each
accused of being married to more than one woman at a time. Another woman has
been added to Oler's indictment after a review by special prosecutor Terry
Robertson.
"It's not a new charge," said provincial
Ministry of Attorney General spokeswoman Linda Mueller.
The charges carry a maximum penalty of five years in
prison.
The case is the first to test Canada's polygamy laws.
Blackmore maintains the case is about religious persecution. His lawyer, Blair
Suffredine, has said the defense could invoke the right to same-sex marriage in
Canada.
Canada's Parliament extended full marriage rights to
same-sex couples in 2005. Blackmore and Oler lead rival polygamous factions in
Bountiful, a town in southeastern British Columbia.
Blackmore is charged with marrying 19 women and Oler is
now accused of marrying three women. Blackmore openly acknowledges having
numerous wives and dozens of children but has said his community abhors sexual
abuse of children.
Blackmore, who has an independent sect of about 400
followers in Bountiful, once ran the Canadian arm of the Utah-based
Fundamentalist Church of Jesus Christ of Latter-day Saints, but he was ejected
in 2003 by that group's leader, Warren Jeffs.
Jeffs is in jail awaiting trial in Arizona on four counts
of being an accomplice to sexual conduct with a minor.
Oler is the bishop of Bountiful's FLDS community, which is
loyal to Jeffs.
_______________________________________________________________________
----- Original Message -----
From: WUNRN
To: WUNRN ListServe
Sent: Wednesday, October 25, 2006 8:10 PM
Subject: Canada - Polygamy - Study Commissioned by Canada Justice
Department - International Law
WUNRN
CANADA - POLYGAMY - STUDY
COMMISSIONED BY
CANADA JUSTICE DEPARTMENT -
INTERNATIONAL LAW
|
Canada
Criticized Over Polygamy International
Human Rights Law Violated: Report
OTTAWA - Canada is violating its international human rights obligations regarding women and children by allowing polygamy to persist unchecked, says a new study commissioned by the federal Justice Department. "Polygamy is a violation of international law," says the study's author, Rebecca Cook, a University of Toronto law professor. "Canada has an obligation as a matter of international law to take all appropriate steps." While polygamy is technically illegal in Canada and punishable by up to five years in prison, the practice has flourished for more than 50 years in Bountiful, B.C. -- the home of a colony of adherents to the Fundamentalist Church of Jesus Christ of Latter Day Saints. The breakaway Mormon sect teaches that men must have at least three wives to achieve eternal salvation. After more than a decade of refusing to lay charges amid concern that the federal law is too weak to survive a constitutional challenge, the provincial Crown is conducting a fresh review of a new police report to determine if criminal prosecution is warranted. Ms. Cook's report, posted on the Justice Department's Web site last month, is part of a broader $150,000 study about polygamy launched by the former Liberal government in 2005. One controversial report commissioned by the Status of Women, which was published last year, called for repealing the ban on polygamy in favour of other laws to help women and children. But Ms. Cook takes a more conventional view, maintaining that Canada is required to enforce the law because it is a signatory to numerous international treaties and conventions such as the United Nation's Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child. Ms. Cook focuses solely on the practice of polygyny -- a man having more than one wife -- rather than the broader term of polygamy, which refers to either a man or a woman. (The practice of a woman having more than one male partner is called polyandry.) Polygyny, she wrote, robs women of their entitlement to marital exclusivity, family life, security and even enjoyment of their citizenship. It also puts them at risk for sexually transmitted diseases and mental-health problems. Polygyny, therefore, also flies in the face of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, she says. The Political Covenant, for example, requires signatories to "take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage, and at its dissolution." Ms. Cook says the harm to girls in Bountiful "could be particularly serious, given that some girls reportedly enter unions at as young as 14 or 15 years of age." The study "reaffirms the position that polygamy will remain illegal in Canada," says Justice Department spokesman Chris Girouard, adding that it remains up to individual provinces to enforce the Criminal Code. Section 293 of the Criminal Code bans "any form of polygamy" or "any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage." While the Justice Department insists its law is legally sound, there have been several legal opinions over the years that say the law would not withstand a constitutional challenge to the freedom of religion guarantees in the Charter of Rights and Freedoms. Ms. Cook's study concludes there is a difference between religious beliefs and practices. "While Canada is not entitled under international law to restrict religious belief, it is entitled and in fact obliged in some circumstances to restrict religious practices that undermine the rights and freedoms of others," she wrote. In Bountiful, leader Winston Blackmore has admitted to having had several child "brides." In the United States, the leader of the sect, Warren Steed Jeffs, awaits trial in Utah, where he is accused of arranging marriages between young girls and older men. __________________________________________________________________________ |
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