In January, Winston Blackmore and James Oler, leaders of separate factions of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS) in Bountiful British Columbia were charged with one count each of practicing polygamy contrary to section 293 of the Criminal Code of Canada.
History of Non Prosecutions of Bountiful Polygamists
Bountiful, located in the tranquil Creston Valley in the southeastern region of British Columbia, has been home to fundamentalist Mormons since the late 1940s.But the general public remained unaware of the community until 1990 when stories began to emerge of polygamy, marriage of under aged girls to much older men and the physical and sexual abuse of women and teens.
Since the early 1990s, legal opinions of various British Columbia Attorneys General and independent counsel concluded that polygamy charges should not be laid because the offence would likely to be found unconstitutional. No steps were taken to prosecute the crime of polygamy until Wally Oppal became Attorney General on June 16, 2005.
Oppal, a former justice of the B.C. Court of Appeal, was determined to prosecute residents of Bountiful not only for polygamy but for alleged crimes of sexual exploitation. Under B.C.'s Crown Counsel Act, the Attorney General has the power to direct his Assistant Deputy Attorney General (ADAG) to appoint a special prosecutor to determine if a prosecution is warranted and if yes, to prosecute. The purpose of the Crown Counsel Act is to allow outside prosecutors to have carriage of matters that are or may be politically sensitive in order to avoid the appearance of political interference.
On May 31, 2007, Mr. Oppal's ADAG appointed Richard Peck, a prominent Vancouver lawyer as a special counsel. On July 25, 2007, Peck concluded that criminal charges should not be laid. Although Peck believed the charge of polygamy could survive a constitutional challenge, he recommended that the province refer the matter of the section's constitutionality to the B.C. Court of Appeal. As far as any sexual exploitation charges, the prosecutor felt that there was no substantial liklihood of a conviction, the test that prosecutors apply in deciding whether to go forward with a matter.
Oppal was not pleased. So at his direction the ADAG appointed another prosecutor to review Peck's findings. On March 20, 2008, Leonard Doust agreed with both Peck's conclusions and recommendations. Referring the matter to the Court of Appeal for a legal ruling would be fairer to potential accused and faster.
A lesser person would have given up by then but not Wally Oppal. Not only did he direct his ADAG to appoint a third prosecutor but he directed that lawyer Terrance Robertson be appointed. The mandate that Robertson was given was substantially the same as Peck's. Roberston concluded that criminal charges should be brought and the following January, Blackmore and Oler were charged.
Judge Strikes Down Appointment of Special Prosecutor
Lawyers for the men applied to the British Columbia Supreme Court for various relief. On September 24, 2009, Justice Sunni Stromberg-Stein quashed the appointment of Terrance Roberston as a special prosecutor. She agreed with Blackmore and Oler that under section 7(5) of the Crown Counsel Act, the decision of the special counsel (Peck) was final. The Judge found that the appointment of Robertson amounted to political interference and she quashed that appointment.
Justice Stromberg-Stein refused to quash or stay the charges against the two men. But since these charges were laid by a special prosecutor whose appointment was quashed it is difficult to see how the prosecution on these charges can proceed.
The province has not yet announced if they will appeal the decision.
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