Charges against BC polygamists dropped

ToadBrother · September 28, 2009

If it is a criminal offense, why does there have to be a complainant?

Technically there doesn't, but if none of the alleged victims will make statements or testify against the individuals being charged, your odds of conviction become very low. That is, I gather, the chief reason that other special prosecutors have rejected laying charges.

The same thing happened when the US government went after that related sect to Blackmore's in Arizona. No one, women or children, were willing to make any statements against the men.

ToadBrother · September 28, 2009

The Quebec premier invoked notwithstanding on all legislation to assert Quebec's independence from federal authority. They eventually stopped doing that as it also asserted authority from any court be it federal or Quebec court.
For a specific case, Saskatchewan invoked notwithstanding to back to work legislation in 1986.

Specific to this case, Alberta invoked notwithstanding in 2000 to the Definition of Marriage act.

Harper could use notwithstanding if he wanted to affirm 293.

There is precedent in the Constitution for it.

I doubt very much that invoking the notwithstanding clause is going to make prosecuting a case where no one wants to testify against Blackmore any easier. I mean, what are you going to do, pass a law suspending the normal rules of evidence?

I believe the charges are thrown out.
The problem is that Wally Opal might have gone shopping for a prosecutor and that made the previous legal opinions pertinent to the judge's decision. I don't think I heard the word acquittal used.

In other words, the government can place charges again if they have new evidence.

Yes. An acquittal is where you are found not guilty. Throwing the charges out means that the judge did not feel that the Crown had reasonable evidence of a crime.

Wilber · September 28, 2009

Technically there doesn't, but if none of the alleged victims will make statements or testify against the individuals being charged, your odds of conviction become very low. That is, I gather, the chief reason that other special prosecutors have rejected laying charges.
The same thing happened when the US government went after that related sect to Blackmore's in Arizona. No one, women or children, were willing to make any statements against the men.

I understand what you are saying but isn't the issue here whether polygamy is illegal and whether it has been committed? If you are merely trying to establish that what would it matter, after all, people can be compelled to testify under oath can they not? If polygamy is illegal, the principle of a wife not having to testify against their husband wouldn't wash as only one of them could claim that status.

I think this is more a case of our whole political and legal system being afraid of the Charter of Rights and how it might be interpreted. Not only do they not want to ask the question, no one wants to answer it either. One AG stepped up and asked the question but got shot down for his trouble. Problem solved. Right?

jdobbin · September 28, 2009

I doubt very much that invoking the notwithstanding clause is going to make prosecuting a case where no one wants to testify against Blackmore any easier. I mean, what are you going to do, pass a law suspending the normal rules of evidence?

I mentioned this earlier. If the court affirms the marriage act of only two people, there still has to be evidence to go through with the prosecution. As mentioned, this is where similar challenges have broken down here and the U.S. with the same sect.

Yes. An acquittal is where you are found not guilty. Throwing the charges out means that the judge did not feel that the Crown had reasonable evidence of a crime.

At some point there may be a complaint or evidence of underage interference but at the moment, the court had nothing tangible to proceed on.

jdobbin · September 28, 2009

Harper said anything about a criminal case before the courts, he would be rightfully flayed for judicial interference.

He can appoint a special prosecutor. That has always been something he could do.

fellowtraveller · September 28, 2009

I understand what you are saying but isn't the issue here whether polygamy is illegal and whether it has been committed?

I don't think it got far enough in the process to determine if any law was broken, there was no evidence presented. The issue of the legality of the polygamy law was far from being considered.

He can appoint a special prosecutor. That has always been something he could do.

How would that have any different result than the three special prosecutors appointed by the BC govt, the last one of which resulted in the case being turfed?

jdobbin · September 28, 2009

How would that have any different result than the three special prosecutors appointed by the BC govt, the last one of which resulted in the case being turfed?

It was turfed because there was no evidence brought forward. A federal prosecutor could investigate and gather evidence from which to proceed to trial with.

Just because B.C. attempt didn't get that evidence doesn't mean the Feds won't get that evidence.

ToadBrother · September 28, 2009

I understand what you are saying but isn't the issue here whether polygamy is illegal and whether it has been committed? If you are merely trying to establish that what would it matter, after all, people can be compelled to testify under oath can they not? If polygamy is illegal, the principle of a wife not having to testify against their husband wouldn't wash as only one of them could claim that status.

Yes, polygamy is illegal but because it appears no fraud has been committed (ie. apply for multiple welfare cheques), and none of these appear to be civil unions, it would be much more difficult to prosecute, and then you would run up against the guarantees of freedom of religion in our constitution. The whole thing could get ugly, if it could even make it through the initial case itself.

I think this is more a case of our whole political and legal system being afraid of the Charter of Rights and how it might be interpreted. Not only do they not want to ask the question, no one wants to answer it either. One AG stepped up and asked the question but got shot down for his trouble. Problem solved. Right?

The Charter is part of it, but first and foremost you have to have willing witnesses. The other prosecutors that looked into this simply could not see how this would happen. The practical side of things is that even if Blackmore is breaking the law, unless the Crown can convince the wives and/or children to testify against him, the prosecution would fail.

And then there's the matter of the prosecution shopping. The judge got pissed because basically the Province kept asking the question until they got someone willing to give them the answer they wanted. It is a flagrant abuse of the AG's powers, to my mind.

But let's just say they hauled Blackmore into court. There's no civil records of these unions, so right away it's going to come down a religious definition of marriage. That's very dangerous territory (for good reason, freedom of religion is a basic right in this country), so there would be pretty solid grounds for an appeal. As to the children, there's no evidence that anyone could find that they were being abused, so that's going to be a no-go too.

In short, a prosecutor's job, or at least part of it, is to weigh the evidence versus the potential of a conviction. In the Blackmore case, while there is some technical evidence at least as far as violating bigay laws, even if a conviction is achieved, it's simply going to go up the chain.

As far as I'm concerned, if a guy wants to live with ten women and call them his wives, and they're willing to put up with it, and the children are at no particular risk, I don't really see what there is to prosecute. It simply becomes a morality trial.

Wilber · September 28, 2009

Yes, polygamy is illegal but because it appears no fraud has been committed (ie. apply for multiple welfare cheques), and none of these appear to be civil unions, it would be much more difficult to prosecute, and then you would run up against the guarantees of freedom of religion in our constitution. The whole thing could get ugly, if it could even make it through the initial case itself.
The Charter is part of it, but first and foremost you have to have willing witnesses. The other prosecutors that looked into this simply could not see how this would happen. The practical side of things is that even if Blackmore is breaking the law, unless the Crown can convince the wives and/or children to testify against him, the prosecution would fail.

And then there's the matter of the prosecution shopping. The judge got pissed because basically the Province kept asking the question until they got someone willing to give them the answer they wanted. It is a flagrant abuse of the AG's powers, to my mind.

But let's just say they hauled Blackmore into court. There's no civil records of these unions, so right away it's going to come down a religious definition of marriage. That's very dangerous territory (for good reason, freedom of religion is a basic right in this country), so there would be pretty solid grounds for an appeal. As to the children, there's no evidence that anyone could find that they were being abused, so that's going to be a no-go too.

Basically what you are saying is put a religious label on it and you can flout the law. Or is it that polygamy is not illegal if everyone says they are happy?

Edited September 28, 2009 by Wilber

ToadBrother · September 29, 2009

Basically what you are saying is put a religious label on it and you can flout the law. Or is it that polygamy is not illegal if everyone says they are happy?

We do have religious freedoms in this country, which does cast a very wide brush, and because it is a basic liberty, it does override any legislation that runs counter to it. That is the general concept of a constitution, after all.

But even beyond that, how do propose to take the guy to trial if no one involved would testify against him? This is, after all, the crux of the arguments that every other attempt to go after the Bountiful crowd has run up against. And the same thing happened in Arizona. Unless the alleged victims decide to co-operate, to even ponder going to trial would be pointless and a waste of resources. In both the Bountiful and Arizona cases, judges tossed out the charges because, despite the reality that polygamy laws had been broken, there was no reasonable way that they could ever take it to trial.

I'm not sure what you would like to do at this point. Force the women and children up on the stand, put a gun to their head and order them to recite what you wish they would say? Just arrest the guy and don't worry about normal standards of evidence? Blame the notion of fundamental rights as flawed because people have religious beliefs you don't like?

Wilber · September 29, 2009

We do have religious freedoms in this country, which does cast a very wide brush, and because it is a basic liberty, it does override any legislation that runs counter to it. That is the general concept of a constitution, after all.
But even beyond that, how do propose to take the guy to trial if no one involved would testify against him? This is, after all, the crux of the arguments that every other attempt to go after the Bountiful crowd has run up against. And the same thing happened in Arizona. Unless the alleged victims decide to co-operate, to even ponder going to trial would be pointless and a waste of resources. In both the Bountiful and Arizona cases, judges tossed out the charges because, despite the reality that polygamy laws had been broken, there was no reasonable way that they could ever take it to trial.

I'm not sure what you would like to do at this point. Force the women and children up on the stand, put a gun to their head and order them to recite what you wish they would say? Just arrest the guy and don't worry about normal standards of evidence? Blame the notion of fundamental rights as flawed because people have religious beliefs you don't like?

I would just like the question answered. Is polygamy illegal and is the law enforceable? What I see is a system that is going out of its way to avoid answering that question. Who is pointing a gun at anyones head? The question is simple. "Did you marry this man" for his "wife" and is he your father for his children"? What's so freeking complicated?

Edited September 29, 2009 by Wilber

Michael Hardner · September 29, 2009

I would just like the question answered. Is polygamy illegal and is the law enforceable? What I see is a system that is going out of its way to avoid answering that question. Who is pointing a gun at anyones head? The question is simple. "Did you marry this man" for his "wife" and is he your father for his children"? What's so freeking complicated.

I think that this was pointed out: no legal marriage happened, so there's no polygamy.

The system sometimes loves avoiding difficult questions as happened with slavery cases before the Supreme Court in the US prior to the civil war.

Wilber · September 29, 2009

I think that this was pointed out: no legal marriage happened, so there's no polygamy.
The system sometimes loves avoiding difficult questions as happened with slavery cases before the Supreme Court in the US prior to the civil war.

Of course not, in order for it to be a legal marriage, someone would have to break the law by performing it. So in reality the system is looking after the system, nothing more.

Some things don't change.

ToadBrother · September 29, 2009

I would just like the question answered. Is polygamy illegal and is the law enforceable? What I see is a system that is going out of its way to avoid answering that question. Who is pointing a gun at anyones head? The question is simple. "Did you marry this man" for his "wife" and is he your father for his children"? What's so freeking complicated?

Yes polygamy is illegal, and yes, the law is essentially unenforceable, at least in cases like Bountiful. So far as I understand it, our bigamy laws do not contain the clause that many US jurisdictions do; that living together as man and wives is sufficient for prosecution. The reason is historical. In most Common Law countries, bigamy laws were not created to stop a guy from living with multiple women, but rather to prevent scoundrels from skipping out on one marriage and remarrying or from keeping multiple households. In a number of US states, bigamy laws were enlarged to deal with Mormon marriages, and when the Mormon Church split and the ancestors of guys like Blackmore kept practicing polygamy, these states made their laws even tougher so as to go after people who weren't entering what effectively amounted to registered civil unions (in short, if you lived like man and wives, regardless of whether you registered at the court house or not, these laws saw your marriages as bigamous and thus illegal).

Not all US states have laws as harsh as you'll find in Utah (which pretty much had to create such laws to enter the Union), and in those states a guy living with several women would not be prosecutable, simply because from a legal perspective no marriage can involve more than two spouses, and even if these guys go around saying their married, they simply cannot be by the laws of the land.

In the Bountiful case, none of these marriages, so far as I'm aware, have actually been registered, and in Canada, like many Common Law countries, a religious ceremony that runs counter to the law is null and void. These guys can call themselves "man and wives" all they like, but since the law does not encompass their form of union, their claim is meaningless from a legal point of view. In one way, they haven't broken any laws. But let's just say that you found a judge willing to interpret bigamy laws in an extremely liberal fashion to encompass those who live in a conjugal marital state with multiple partners within the same household. If none of those people will co-operate, just how do you propose to bring it to trial.

What has killed, repeatedly, any prosecutions in the Bountiful case is 1. bigamy laws that may not apply to these particular cases, 2. the unwillingness of witnesses or alleged victims to co-operate sufficiently to have any reasonable chance of achieving a conviction, and 3. basic religious freedoms guaranteed to Canadian citizens which, as constitutional directives always do, preclude any act of Parliament or Provincial Legislature.

I suppose the Province could invoke the Notwithstanding Clause, but even that couldn't overcome points 1 and 2, and in particular point 2. Even with a legal exemption from religious freedoms in the Bountiful case, if the people you're calling victims don't co-operate, you ain't got a case, and damned near every judge out there would throw it out, and even if you could find a judge who would allow a conviction, it would never survive appeal.

Wilber · September 29, 2009

Just a thought but should impaired driving not be prosecuted if there is no property damage, no injuries and no complaints?

I'm not saying this is happening at Bountiful but I bring it up because is seems our system is prepared to allow battered women and other crimes against individuals so long as they are too frightened to complain but will give someone a criminal record just because they blew over an arbitrary limit on a breathalyser. How does one justify this kind of double standard.

ToadBrother · September 29, 2009

Just a thought but should impaired driving not be prosecuted if there is no property damage, no injuries and no complaints?

Yes, because driving will impaired is against the law and does not require complaints to be prosecuted. In theory, neither does polygamy, but unless you have someone willing to testify, it's unlikely a trial would ever lead to a conviction.

I'm not saying this is happening at Bountiful but I bring it up because is seems our system is prepared to allow battered women and other crimes against individuals so long as they are too frightened to complain but will give someone a criminal record just because they blew over an arbitrary limit on a breathalyser. How does one justify this kind of double standard.

It isn't a double standard, and spousal assaults can be prosecuted providing someone who was witness to them is willing to testify. If no one will appear in court to testify against an accused, then how is it that you propose to prosecute the individual? That's the nature of our system. In your example of a drinking driver, the police are empowered by law to stop motor vehicles, and they have the power, if they suspect you of drinking and driving, of requesting breathalyzer and sobriety test. In short, the police are the accuser.

You seem to be willfully missing the point here, and I'm not sure why. I'll ask again, how do you propose to conduct a trial if none of the witnesses or alleged victims will actually testify against the men in question?

Wilber · September 29, 2009

deleted

Edited September 29, 2009 by Wilber

Wilber · September 29, 2009

That's the nature of our system. In your example of a drinking driver, the police are empowered by law to stop motor vehicles, and they have the power, if they suspect you of drinking and driving, of requesting breathalyzer and sobriety test. In short, the police are the accuser.

There is your double standard. I'm not making a case one way or the other but the law is not consistent in the way it is applied when it comes to crimes against individuals versus crimes against the state.

ToadBrother · September 29, 2009

There is your double standard. I'm not making a case one way or the other but the law is not consistent in the way it is applied when it comes to crimes against individuals versus crimes against the state.

You would first have to establish that there was indeed a crime against the individuals in question. In this case (as with cases of spousal assault) if the alleged victims won't co-operate, it's all but impossible to achieve a conviction. It's not a double standards, it's simply the nature of our justice system. And I've asked you repeatedly how you would like to amend this, but you keep hovering over the same spot, seemingly satisfied with bellowing the same thing over and over, but not willing to make any particular suggestions as to how one could change things.

Wilber · September 29, 2009

Well if I repeat it, it is because it is so. I am just pointing out that in crimes against individuals, regardless of physical evidence a crime has been committed, a complaint from a private citizen is required to take action. Yet in the case of murder, the state makes the complaint because the victim is unable. When children are involved, the state can intervene without a complaint being filed because rightly so, they are seen as not being able to defend themselves. I'm merely pointing out that these are not the only reasons for being unable to make a complaint. Abject fear can be a very effective reason and can be just as effective on adults as children. In short, the law accepts the intimidation of adults.

We are on a different track here because I don't believe there is evidence of these things happening in this case but what if there were compelling evidence that there was but no witnesses who were willing to testify and no victims brave enough to complain. Are you saying we have no responsibility toward those victims?

How do you address it? I'm not quite sure but obviously there is more than one standard and it seems to be based on what society is prepared to accept in different social situations.

ToadBrother · September 29, 2009

Well if I repeat it, it is because it is so. I am just pointing out that in crimes against individuals, regardless of physical evidence a crime has been committed, a complaint from a private citizen is required to take action. Yet in the case of murder, the state makes the complaint because the victim is unable. When children are involved, the state can intervene without a complaint being filed because rightly so, they are seen as not being able to defend themselves. I'm merely pointing out that these are not the only reasons for being unable to make a complaint. Abject fear can be a very effective reason and can be just as effective on adults as children. In short, the law accepts the intimidation of adults.
We are on a different track here because I don't believe there is evidence of these things happening in this case but what if there were compelling evidence that there was but no witnesses who were willing to testify and no victims brave enough to complain. Are you saying we have no responsibility toward those victims?

How do you address it? I'm not quite sure but obviously there is more than one standard and it seems to be based on what society is prepared to accept in different social situations.

Until we can invent mind reading, there's precious little we can do, and still maintain any notion of standards of evidence and testimony. If people won't co-operate, the Crown is put in the situation of essentially having to name even the alleged victims hostile. A defense lawyer is going to be able to jump all over that (and rightfully so, conviction should not be achieved in this matter, that's pretty damned scary), and even if somehow a judge or jury convicts, an appeals court is going to go "Wait a minute, you mean the guy was convicted based on forced testimony?"

I know this leads to some sad situations. In our hearts we all know that there may very well be some unseemly things going on in Bountiful. At the very least, some of Blackmore's co-religionists south of the border (like the monster Warren Jeffs, though Blackmore claims to be a member of a breakaway sect of that breakaway sect) are known to do some pretty awful things. Still we can't convict people because other people of similar beliefs do bad things, nor can we convict people based simply on moral outrage.

As I've explained, our bigamy laws aren't really built to deal with the Bountiful situation. I suppose one could seek to change the laws in question, and to increase their scope, but do you really want to turn the cops into the Morality Squad, going after all manner of peculiar relationships just to get at the Bountiful crowd? In some US states that's exactly how the bigamy laws work. If you and two women were to decide to become a permanent threesome, and cohabitate, then it's possible that the cops could come and haul you all away. In fact, in some States, living openly like this could actually lead to stiffer penalties than a guy who was sneaking around with multiple wives who didn't know he was married multiple times (classic Common Law bigamy).

The Bountiful group has been a bone in the Province's throat for years, and every once in a while, the moral outrage gets big enough that the Attorney General or the Ministry of Families/Welfare/Whatever will send someone down there to bring those folks into line, and every time, except for this last one, the investigators find no evidence of abuse and realistic expectation that a trial could lead to conviction. That's why this one got tossed out. If we want to go after Blackmore and his ilk, it's the law that needs changing.

fellowtraveller · October 1, 2009

It was turfed because there was no evidence brought forward. A federal prosecutor could investigate and gather evidence from which to proceed to trial with.
Just because B.C. attempt didn't get that evidence doesn't mean the Feds won't get that evidence.

No, it was turfed because

In a decision released Wednesday, Judge Stromberg-Stein ruled B.C.'s attorney general had no jurisdiction to direct his staff to appoint Mr. Robertson as a special prosecutor.

They didn't get anywhere close to 'evidence'.

The feds have not been keen on prosecuting for 70 years because the Bountiful types kept a low profile. For the last few years, they recognize that discriminating against people with multiple marriage partners is no different than the discriminating against people with same gender partners. Even knowing that, the feds have pushed and spent money, knowing that eventually the polygamy law must fail a Charter test.

There are no votes in this Pandoras box for anybody, and the can of worms will polarize a nation over what is a relatively small issue.

fellowtraveller · October 1, 2009

It was turfed because there was no evidence brought forward. A federal prosecutor could investigate and gather evidence from which to proceed to trial with.
Just because B.C. attempt didn't get that evidence doesn't mean the Feds won't get that evidence.

No, it was turfed because

In a decision released Wednesday, Judge Stromberg-Stein ruled B.C.'s attorney general had no jurisdiction to direct his staff to appoint Mr. Robertson as a special prosecutor.

They didn't get anywhere close to 'evidence'.

The feds have not been keen on prosecuting for 70 years because the Bountiful types kept a low profile. For the last few years, they recognize that discriminating against people with multiple marriage partners is no different than the discriminating against people with same gender partners. Even knowing that, the feds have pushed and spent money, knowing that eventually the polygamy law must fail a Charter test.

There are no votes in this Pandoras box for anybody, and the can of worms will polarize a nation over what is a relatively small issue.

jdobbin · October 1, 2009

No, it was turfed because

That was only part of it. The previous people that the Attorney General wanted to appoint said that they had to have evidence to proceed successfully.

The judge raised the issue of the previous failed appointments in the decision.

http://www.theglobeandmail.com/news/nation...article1299319/

Madam Justice Sunni Stromberg-Stein found that the former attorney-general of B.C. had unfairly gone “special prosecutor shopping” when he ignored the advice of two prosecutors and kept searching until one was found who wanted to press charges.
By doing so, Judge Stromberg-Stein said, the attorney-general “upset the critical balance that … should be kept between political interference and accountability.”

The Crown didn't think they had a slam dunk on the evidence and the first two prosecutors wanted to ensure that a religious defence didn't torpedo the case and suggested the province get a Supreme Court assessment of that.

They didn't get anywhere close to 'evidence'.
The feds have not been keen on prosecuting for 70 years because the Bountiful types kept a low profile. For the last few years, they recognize that discriminating against people with multiple marriage partners is no different than the discriminating against people with same gender partners. Even knowing that, the feds have pushed and spent money, knowing that eventually the polygamy law must fail a Charter test.

There are no votes in this Pandoras box for anybody, and the can of worms will polarize a nation over what is a relatively small issue.

Even if there is a charter test case where the marriage act is affirmed, you still need some evidence to proceed for charges to stick.

Edited October 1, 2009 by jdobbin

fellowtraveller · October 1, 2009

That was only part of it. The previous people that the Attorney General wanted to appoint said that they had to have evidence to proceed successfully.
The judge raised the issue of the previous failed appointments in the decision.

http://www.theglobeandmail.com/news/nation...article1299319/

The Crown didn't think they had a slam dunk on the evidence and the first two prosecutors wanted to ensure that a religious defence didn't torpedo the case and suggested the province get a Supreme Court assessment of that.

Even if there is a charter test case where the marriage act is affirmed, you still need some evidence to proceed for charges to stick.

Neither your quote or that of the OP refers at all to evidence, and indicates what I had said: there were other reasons for not getting to trial, they never got to the issue of evidence.

And if they ever do actually get evidence, IMO they will lose a Charter challenge, which will mean the polygamy law is toast.

Then they'll have to decide what to do: somehow create a law that bans polygamy yet respects the Charter(not easily done or they'd have done it already), change the Charter(won't happen) or just give up and bring in the necessary civil administration to regulate the practice.

And really, as long - and this is critical- as the people involved are consenting adults- why should I care who boinks whom?

The govt should have recognized this coming long ago, ten years ago when the discussion of same sex marriage entrenched the feds in defining marriage. Instead, they should have abdicated any defintion of marriage to religious organizations or individuals themselves, and just concerned themselves with the adminstration of whatever domestic arrangement two or more Canadians choose.