Roger writing the LAWmag

Polygamy Now Safely Brewed In British Columbia?

There is an old Red Rose tea commercial in which an uppity British woman sips on a cup of tea, pauses and then reflects,with a thick British accent:

"Ohh! Brewed only in Canada? Hmm. ‘Tis a pity!" 

Wally OppalWith acknowledgment as to intellectual property, and a thick British accent, the question "brewed only in British Columbia?" must now be uttered.

When Wally Oppal (pictured) left his cushy Court of Appeal job and ran for a seat in the provincial legislature, most lawyers could just marvel at the move. Why would he step into a job where he is going to have to work considerably harder?

But Wally is Wally; a bit of an eccentric but otherwise a likeable all otherwise solid guy.

Let’s see what he does, we all thought.

And until this afternoon, recent controversies surrounding his solicitor General notwithstanding, he seemed to be holding the fort nicely as provincial Attorney General.

Polygamy

On April 7, 2008, yet another special prosecutor hired by the provincial government announced that the Attorney general ought not to prosecute notorious polygamists and bigamists, who practise their brand of family law anywhere but in particular, in Bountiful, British Columbia.

Perhaps the Attorney General or his hired guns fear the result of an anticipated court challenge on the sections of the Criminal Code that prohibit polygamy and bigamy in Canada. Crown did lose the litigation against the same-sex marriage prohibition. 

Wally Oppal announced this pregnant news, no pun intended, by way of press release. It was left to non-elected Crown counsel at the criminal justice branch of his ministry to announce the decision by 4-page press release based, presumably, on the politically-soft rationale of convictabilty.

Oppal can now sit back and assess the public reaction and, unfortunately, defer prosecution yet again.

Executive Branch

The Honourable Wally Oppal is now a member of the executive branch of government; no longer a member of the judicial branch.

Over ninety years ago, in Eastern Trust Co. v. Mackenzie, Mann & Co., published as 1915 Appeal cases, page 750, in an era where Canada still allowed appeals to the British Privy Council, the latter stated that: 

"It is the duty of the Crown and of every branch of the executive to abide by and obey the law. If there is any difficulty in ascertaining it the courts are open to the Crown to sue, and it is the duty of the executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it."

This is not rocket science.

This is basic foundation of law stuff taught at the college level.

That, we expect this attorney general to know.

Those breaking the law pay close attention to the level of interest paid to their activities by the executive branch of government, especially the law enforcement arm.

The Precedent and The HazardCouture painting Decadence of Rome

To society, procrastination by an attorney general in regards to prosecution of any particular type of criminal conduct is equivalent, if not identical, in practice and in effect, to an announcement that the conduct is legal. Only lawyers would split hairs and exchange legal theories on that semantic distinction, even while society's reaction proves them wrong.

If they are celebrating in Bountiful, and surely they are, it because something extraordinary has happened: the law has blinked.

It ought never to.

It takes stomach and guts to be a provincial cabinet minister; ingredients just as important as integrity and intelligence.

It is not the Attorney General’s role to decide which federal or criminal laws to enforce based on political expediency or budgetary concerns. To do otherwise invites and encourages what the bad guys are best at: manipulation of the law; jurisdiction-shopping. This does not make Canada - including British Columbia - a better place.

As noted by the Crown in the press release, BC's position will not likely be lost on whatever Canadian judge ends up hearing a constitutional challenge of the bigamy and polygamy sections of the Criminal Code, who will most certainly note:

"This Court notes that the Province of British Columbia, in April of 2008, declined to prosecute individuals suspected of bigamy...." 

If Wally Oppal, our law enforcement chieftain, is gun-shy of dealing assertively with allegations or reports of criminal activity, he should of stayed in his comfy judge office at the top of the Vancouver Courthouse.

What he is responsible for, and not his special prosecutors - brilliant though the latest may be - by this decision not to prosecute, is nothing short of a substantial abandonment of his legal duties on a significant issue requiring public leadership, not public timidity.

If the problem were just Bountiful, we could sleep on this.

But Oppal's equivocation comes at a time when the legal definition and institution of marriage is in an extremely precarious state in Canada, as we seem intent on "cutting edge, human rights-based" experimentation.

Some legal historians like jurist John Bouvier in his 1856 Law Dictionary under "government", speculate that government, law and society stem from the family: 

"The family is a society, and expands into clusters of families, into tribes and larger societies, collecting into communities, always carrying the habit and necessity of authority and mutual support along with them. As men advance, the great and pervading law of mutual dependence shows itself more and more clearly, and acts more and more intensely."

Anxious though we may be to hope that Bouvier overstated the importance of the traditional family and the "mutual dependence" with peace and order, we must recall the messages of the decline of Rome, where the least that can be said of it, so vividly captured by Thomas Couture’s painting entitled "Les Romains de la decadence" (pictured), was that it was contemporaneous with what is portrayed on the image.

Will's Wally Oppal's policy of "deflect, defer or do nuthin" approach have a snowball effect?

If it does, mark your calendars and where you read it first, polygamy will soon be legal in Canada aka "an unenforceable law" ... as it may be now, today, as of Noon, April 7, 2008, in the Province of British Columbia, unless Wally Oppal does what he is paid to do.

What effect legalizing polygamy has on Canadian society, short, mid or long term, is anyone's guess.

Brewed only in BC?

Hmmm.

'Tis a pity indeed.

Posted in Crime and Criminal Law, Current Events, Family Law
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