Final Arguments End

In the Vancouver Sun, Daphne Bramham sums up the final day's arguments.  She writes:

If Canada's polygamy law is upheld, the court must clearly define the practise and spell out what polygamists must do to comply with the law, the lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints said Wednesday.

Robert Wickett noted that when special prosecutor Richard Peck recommended a constitutional reference case to determine whether the law is valid, he did so because he believed that the fundamentalist Mormons in Bountiful needed fair notice that the status quo had changed.

In 1992, the B.C. government declined to prosecute two men from Bountiful because it had legal opinions suggesting that the polygamy law breached the constitutional guarantee of religious freedom and possibly the guarantees of freedom of association and expression.

As a result, there were no polygamy charges laid until 2009 when then-attorney general Wally Oppal decided that the best way to test the law was within the context of a criminal trial. He hired another special prosecutor who agreed. 

Winston Blackmore and James Oler -- two of Bountiful's leaders -- were subsequently charged with one count each of polygamy. Those charges were stayed after a judge determined that the second prosecutor was improperly hired.

Wickett made the comments Wednesday in his closing argument in the constitutional reference case that's being heard by Chief Justice Robert Bauman of the B.C. Supreme Court.

However, Wickett argued that the law ought to be struck down because it doesn't criminalize the conjugal relationship, it criminalizes the specific intent to agree to a multi-partner, conjugal relationship.

Read more at

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In the Globe & Mail, James Keller summed up the final day's arguments in this way:

The polygamous families living in Bountiful, B.C., shouldn’t be ripped apart because some in the community may have committed crimes, a lawyer for the isolated religious sect told court Wednesday.

Robert Wickett, who represents the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS, didn’t deny the allegations of abuse, child brides and human trafficking that have become central to the debate about whether polygamy should remain illegal.

Instead, Mr. Wickett said if some members of the community have committed crimes, only they should be punished for them.

“It is not the position of the church that criminal acts, including child abuse or other crimes, that may have been committed in the community are to be excused or condoned,” Mr. Wickett said during the final week of arguments in B.C. Supreme Court.

“This church, like any other, is comprised of a vast variety of people. Most are hard-working, law abiding citizens. Some may have committed crimes, but it would be wrong to visit the crimes of some upon an entire community.”

The landmark case is examining whether Canada’s laws against polygamy are constitutional.
It was prompted by the failed prosecution in 2009 of two men from Bountiful, a community of about 1,000 people near Creston, B.C., not far from the Canada-U.S. border. Unlike the mainstream Mormon church, which renounced polygamy more than a century ago, followers of the FLDS believe plural marriage will benefit them in heaven.

The court has heard that about 100 residents of Bountiful are husbands and wives in polygamous marriages.

Mr. Wickett said if the law is upheld, those families would have two choices: they could either voluntarily end their marriages, in some cases separating children from their parents, or face criminal charges.

“I urge you to consider the impact of those inevitable prosecutions upon the families in Bountiful,” Mr. Wickett told Chief Justice Robert Bauman.

The law would “dismember their families.”

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It is expected that any replies to the final arguments will take place on Friday 15th April, after which all the evidence given during the reference proceedings will be in the hands of Chief Justice Robert Bauman.  

He will give his reasons on the constitutionality of the present

law against polygamy later this year.