Vancouver, Canada - A special prosecutor has concluded there's not enough evidence to charge members of a British Columbia polygamist colony with sex offences involving minors, closing yet another door in the government's bid to find a way to levy charges against the breakaway Mormon sect.
But in shutting off one legal avenue, Richard Peck opened another, suggesting the time had finally come for the B.C. government to challenge the law banning polygamy itself by asking the courts to rule on its constitutional validity.
By putting the question before the court, the government leaps over the hurdle of prosecuting a criminal case in which the defendants would likely claim religious freedom as a defence and where getting witnesses to testify could be extraordinarily difficult.
Indeed, the challenge in finding women to say they were victims of sexual offences in Bountiful was the reason Peck couldn't gather enough evidence to find a basis to lay charges, B.C. Attorney-General Wally Oppal said Wednesday.
"The real issue here is that the number of so-called complainants that we have have all told us that they consented to the act that took place," Oppal said.
At the time the incidents are alleged to have taken place, the age of consent was 14, though it's now been raised to 16. CORRECTION: Legislation to raise the age of consent is still before the Canadian Senate.
"We really have no case as far as sex assaults are concerned," Oppal said.
So authorities tried to pursue charges that the women had been sexually exploited by a person in a position of trust, but that effort was again thwarted.
"There's no evidence of exploitation," Oppal said.
"In fact, it was surprising to me the number of young women who told police that they were the aggressors, that they wanted to have sex with the older men."
Though activist Nancy Mereska welcomed the decision to refer the constitutionality of the anti-polygamy law to the courts, she questioned what had taken the government so long to come up with the idea.
"I fail to see why this decision couldn't have been made years ago," she said in an interview.
"Frankly I find this whole process of delay, delay, delay and find another avenue in which they can delay some more to make somebody else make a decision for them, I find the process disgusting."
Mereska, who heads the Stop Polygamy Coalition, is herself a former Mormon who spent years trapped in a marriage, she said, to a very fundamentalist husband.
She said the women who would have told authorities they wanted to be with men many times their age would have been too terrified to say otherwise.
The court should appoint an advocate for them, she said, and the government should go ahead with the criminal charges for sex offences as well.
Oppal asked for a special prosecutor to look into the case in May after a months-long review by his ministry's criminal justice branch concluded there was no likelihood of any conviction on the charges.
Peck agreed that convicting members of Bountiful on sex charges was unlikely and that it's time to find out once and for all if Canada's laws against polygamy will stand.
"I have come to the conclusion that polygamy itself is at the root of the problem," he wrote.
"Polygamy is the underlying phenomenon from which all the other alleged harms flow and the public interest would best be served by addressing it directly."
Members of the colony, located in southeastern B.C., belong to a breakaway sect of the Mormon church and believe that in order to get into heaven, men must marry as many women as possible.
Governments may refer legal questions to a court without anyone actually being charged – it happened with the same-sex marriage issue in 2004 and previously on the right of Quebec secession in 1998.
"If the law is struck down, the onus will be on the federal government to develop a new, Charter-compliant legislative solution to the problem," Peck wrote.
"If the law is upheld, members of the Bountiful community will have fair notice that their practice of polygamy must cease."
Charges against members of the Bountiful colony, in southeastern B.C., were recommended by RCMP as far back as 1990.
The Crown decided not to proceed based on legal opinions that the polygamy ban would be struck down as an infringement on religious freedom.
In 2006, the RCMP again recommended charges, this time under the sexual exploitation provision of the code, which prohibits an adult from having sex with someone between age 14 and 18 when the adult is in a position of authority.
Again, the Crown concluded a conviction was unlikely.
Oppal appointed Richard Peck as a special prosecutor in May, saying he wanted an outside opinion to be sure.
Peck said in his report he thinks Canada's anti-polygamy law does not violate the Charter of Rights guarantee of religious freedom.
"There is a substantial body of scholarship supporting the position that polygamy is socially harmful," he wrote.
"Religious freedom in Canada is not absolute."
The Church of Jesus Christ of Latter-day Saints, or Mormon Church, renounced polygamy in 1890 and the Bountiful group broke away from it. The Mormon Church excommunicates members who practise polygamy.
Oppal said he personally believes the law against multiple marriages is valid and the referral to the Court of Appeal could be made by the fall.