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This article was published 25/10/2009 (4105 days ago), so information in it may no longer be current.

Editorial

Battered and bruised by a protracted battle and numerous thwarted attempts to prosecute polygamists who live openly and in defiance of criminal law, British Columbia's attorney general decided last week to turn to the Supreme Court of B.C. for an opinion on whether that law was constitutionally valid. In making the reference, Mike de Jong announced he would not appeal a ruling last month that quashed charges against two men.

The reference is a welcome development. British Columbia has been at the epicentre of the national debate over the polygamy prohibition, which seems to trample the religious beliefs of various groups that practise it. In Canada, this debate has focused on the right of a man to have multiple wives -- no Canadian woman has stepped forward to assert her right to more than one husband and the most public display of polygamy centres on a compound at Bountiful B.C., established by a fundamentalist sect that broke away long ago from the Mormon church.

Last month a B.C. Supreme Court judge quashed charges against Bountiful leaders Winston Blackmore -- who is said to have 19 wives -- and James Oler. The judge found former attorney general Wally Oppal had overstepped his authority in shopping around for a prosecutor who would take the cases to court. Two previous special prosecutors personally selected by Oppal considered the charges and told him that while Sec. 293 is constitutionally valid, the most efficient test of the law would be to refer it to the province's Court of Appeal. Oppal, facing repeated investigations by the RCMP at Bountiful, opted instead to appoint a third special prosecutor, who eventually agreed to take the charges to court. Both that prosecutor and the charges were dismissed by the judge last month.

The reference to the province's supreme court is Mr. de Jong's last, desperate resort, an uneasy compromise for a minister who has very few options left. There is a law on the books against multiple spouses and a vocal public growing increasingly cranky about scofflaws who openly flout it, amid allegations of sexual exploitation and a fear that young girls have been taken in marriage.

B.C. certainly is not alone in its discomfort, not the only jurisdiction to have some interest in the judicial opinion. Canada increasingly welcomes Muslim immigrants from the Middle East and Asia, and immigration authorities and officials with provincial social services face hard decisions over bids to bring in and support multiple wives. Like the Bountiful believers, these families are ready to fight to defend their marital practices under the banner of religious freedom. Federal Justice Minister Rob Nicholson, declaring polygamy fundamentally out of step with the values of modern Canadian society, quickly announced federal lawyers will join in the defence of the polygamy law.

Mr. de Jong chose to send the polygamy reference to the B.C. Supreme Court, rather than to the appeal court, so his government could fully explain its position, presenting evidence and witnesses -- putting a face to the practice, he said. But the court, should it agree to hear this reference, should not be drawn into a surrogate trial of Bountiful's men. Canada needs a clear, dispassionate arbitration of a law written long ago and now at odds with a Charter protection for religious freedom in a diverse, pluralistic society.