Vancouver — From Monday’s Globe and Mail Last updated on Monday, Jul. 06, 2009 03:51AM EDT
A Supreme Court of Canada ruling on a Charter challenge to the marijuana laws is “a bellwether decision” when it comes to the constitutionality of the polygamy law, says British Columbia’s special prosecutor Terry Robertson.
In the first glimpse into government strategy on the closely watched polygamy case, Mr. Robertson said the top court in the country decided that prohibiting possession of marijuana was neither arbitrary nor disproportionate. The court found that the prohibition was connected to a reasonable apprehension of harm and the court had a range of sentencing options, including no mandatory minimum sentence, he said in a submission to B.C. Supreme Court.
Similarly, those who claim the Charter protects polygamy say relationships between consenting adults that causes no harm to others should not be prohibited, he said.
However, the practice of polygamy “does indeed cause harm to others as well as to those who practise it,” Mr. Robertson said. “The Court’s reasoning [on the marijuana law challenge] applies,” he added.
Mr. Robertson also shed light on why he rejected the advice of several constitutional experts who recommended testing the constitutionality of the polygamy law with a reference to the top court.
The Supreme Court of Canada would have been asked to offer its opinion without hearing from wives and daughters who live in the polygamous community, he says in a submission to B.C. Supreme Court.
“The witnesses provide extensive and detailed first-hand experience about polygamy, including through direct experience as participants in polygamous relationships, children of polygamous relationships or individuals whose lives were shaped by polygamy in their community,” he said. Some of the women would give crucial first-hand evidence relating to a part of the Charter that could be interpreted to limit freedom of religion, Mr. Robertson also said.
Those who are reluctant to testify can be compelled to appear in court for a trial with the use of a subpoena, he added. It would be “most unusual” for witnesses to give evidence during a reference in either the B.C. Appeal Court or the Supreme Court of Canada, Mr. Robertson said.
Also, search warrants could be used under the Criminal Code to obtain medical records and other documents that may not otherwise be available to the court. “It is possible that the basic facts may be contested in a reference, where they may be easily proven using criminal law procedures,” Mr. Robertson said.
Mr. Robertson was appointed last year to advise the B.C. government on how to respond to a polygamous religious sect in southeastern B.C. He has refused to make his report available to the public.
However, he set out his approach in response to a legal challenge to criminal charges against religious leaders Winston Blackmore and James Oler.
The RCMP say Mr. Blackmore, as of September, 2005, had 25 wives and 101 children; nine of the women were under the age of 18 when they were married to Mr. Blackmore. He was charged earlier this year with practising polygamy with 19 women.
Mr. Oler was charged with having three wives. He had three wives in 2005, the RCMP say.
Mr. Blackmore has said he believes his constitutional right to freedom of right trumps the law against polygamy.
Madam Justice Sunni Stromberg-Stein, of the B.C. Supreme Court, is expected to rule this week on an application to halt the proceedings on the basis of a procedural matter.
Mr. Blackmore’s lawyer, Bruce Elwood, said Attorney-General Wally Oppal had overstepped his authority by “shopping” for a prosecutor who was willing to go ahead with the charge even though two previous prosecutors decided not to charge Mr. Blackmore.
Without the proper authority, the charges were contrary to principles of fundamental justice, Mr. Elwood said.
Both NDP and Liberal governments in B.C. over recent years have repeatedly shied away from testing the controversial polygamy law with a reference to a higher court, despite the advice of at least four prominent legal experts.
Retired B.C. appeal court judge Richard Anderson in 1992 concluded the polygamy law was an unjustifiable infringement of the guarantee of freedom of religion. Former B.C. chief justice Allan McEachern, in a legal opinion for the B.C. government in 2001, is reported to have advised that a defence of religious freedom would probably result in the anti-polygamy section of the Criminal Code being struck down as unconstitutional.
Special prosecutor Richard Peck in 2007 concluded that a referral to the B.C. Court of Appeal was preferable to pursuing a criminal charge against Mr. Blackmore. Len Doust, who was appointed an ad hoc prosecutor to review Mr. Peck’s decision, advised the government last year that he agreed with Mr. Peck that a constitutional reference was the appropriate way to proceed.