If nothing else, Attorney General Wally Oppal’s dogged pursuit of the Bountiful religious sect’s leaders has resulted in some of the oddest bail conditions ever imposed in B.C.
Winston Blackmore, leader of one faction in the commune, was released yesterday on condition that he stop getting married until the polygamy issue is sorted out.
He’s reputed to have 20 wives, and he’s going to have to make do with the status quo for a while until the charge laid against him is resolved.
Which will probably take years, if the decades-long history of the B.C. government’s handling of this case is any indication.
Most of that history has been characterized by a hands-off approach where authorities looked the other way and maintained a scrupulous lack of interest in the remote Kootenay valley where middle-aged men routinely marry multiple women, many of them teenage girls.
Growing unease with that peculiar lifestyle led to an official look-see a few years ago. But even after a thorough investigation, the government was warned numerous times to tread lightly.
At least six prosecutors — four in-house Crown counsel and two independents — have looked deeply into the case over the past few years and recommended against charges. Mostly it’s because the criminalization of polygamy appears to conflict with the Bountiful commune’s right to religious freedom.
But Oppal has insisted on pressing on.
After the four senior Crown counsel recommended against laying charges, the attorney general hired lawyer Richard Peck to review the case again. He considered every sex and marriage-related offence in the Criminal Code and was unable to find one that would result in a substantial likelihood of conviction.
He recommended instead appealing to the courts for a reference ruling on the validity of the polygamy law, in relation to the charter of rights.
“My view is that the public interest will best be served by an authoritative and expeditious judicial resolution of the legal controversy surrounding polygamy.”
His idea was that if the 120-year-old polygamy law is declared unconstitutional, then the federal government would have to draft a new law that is compliant. And if the polygamy law was upheld, then Bountiful would have fair notice their practice must cease.
Unsatisfied with that road map, Oppal retained lawyer Leonard Doust to draw up another one.
But Doust last year arrived at the same conclusions. “A reference rather than a prosecution is the most appropriate way to proceed at this time.”
“It is not an attempt to dodge or delay dealing with the problems in Bountiful. On the contrary, it is the swiftest, most effective and fairest way of beginning to address them,” Doust wrote.
He went even further, stating that while a prosecution might “superficially carry the appearance of engagement, I believe that it likely represents a much slower route to a real solution, if it is a viable route at all.”
Oppal rejected that opinion as well, and promptly ordered up a third outside look, this time by lawyer Terrence Robertson.
He was named special prosecutor last June and given full authority over how the case was to be handled. It was his decision that led to yesterday’s arrest of Blackmore and a co-accused.
After three tries, Oppal has finally found a lawyer who agrees with him.
The attorney general candidly acknowledged that’s the only difference.
“Nothing has really changed as far as the evidence from 2007 is concerned,” he said.
Oppal is no legal dummy. He’s a longtime lawyer and former judge, with his own views on how to proceed. He told reporters yesterday: “Having been on the court of appeal, I can tell you that courts do not like to decide cases in a vacuum, without the presence of facts or evidence.”
If the government had followed the reference route, he raised the prospect of the courts declining to hear it, which would just lengthen the stall.
So they’re going the other route, laying charges based on evidence alleging that Blackmore is a practising polygamist.
Oppal called it the “conventional” approach. But there’s nothing conventional about ignoring two special prosecutors’ recommendations, and then proceeding entirely independently of the criminal justice branch, which has more or less washed its hands of this matter.
He could still win the day, after a lengthy legal war in which everything from the Bible to the charge approval requirements will be dragged into the fray.
But if he loses, the end result could be the complete decriminalization of polygamy for the foreseeable future.
Either way, Blackmore will likely be in a holding pattern for several years to come.
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