A Case for the Trial Court

• Author: Craig Jones
• Pages: 93-137

93

PART 4

A Case for the Trial Court

The Green Light

What now? An appeal of the Blackmore decision was possible and had,

I thought, a reasonable chance of success. Our argument, that the spe-

cial prosecutor provisions were not designed to prevent interference by the

Attorney General, but only to ensure that it was overt and transparent,

was (I still believed) the better interpretation of the Crown Counsel Act.

But good law rarely stacks up to bad facts, and the unique circumstances

that led up to the prosecution had, fairly or not, a whi of impropriety

about them. At the very least, the sheer persistence of Oppal in going

after Blackmore and Oler left many people, including, I suspected, many

judges, uneasy. is was partic ularly so, I thought at the time, because the

charges were for polygamy simpliciter — there were no allegations of sex ual

exploitation or other criminal abuse, and many saw the use of the section

as overreactive and disproportionate.1

In any event, an appeal of Stromberg-Stein’s decision would have

taken time, might have gone to the Supreme Court of Canada, and after

years and hundreds of thousands if not millions of dollars, would have

settled nothing except that the prosecution could restart. e constitu-

tional issue would still be waiting for adjudication, and then more years,

and more expense, as that matter worked its way up the appellate ladder.

e concern over money was not incidental; in recent years, the govern-

ment has increasingly found itself in situations where it has been forced to

provide funding for defence counsel in complex criminal cases, through

Rowbotham or other routes;2 once the genie was uncorked, prosecution for

even relatively minor oences was often ending up costing the taxpayer

millions, while the legal aid budget for criminal defendants and abused

wives in divorce proceedings was mercilessly slashed. Arvay had already

made applications for special funding in the Blackmore case, and it ap-

A Cruel Arit hmetic: Inside the Case Against Polygamy

94

peared that the government would be, one way or the other, on the hook

for his substantial legal fees once the prosecution resumed.

But the train wreck of the criminal case meant that the idea of a trial

court reference began to gain traction again. e diculties of a prosecu-

tion were by now clear. e new Attorney General, Mike de Jong, was

not as personally invested in prosecuting as was Oppal, and he was quick-

ly proving himself to be a smart man who read everything put in front

of him and was decisive when circumstances required it. e economic

downturn had imposed tight scal restraints across government, and the

idea that a cumbersome and expensive prosecution, using excellent but

high-priced outside talent, might be replaced by a more ecient process

using in-house lawyers, likely weighed on the decision too. We could

build on some of the groundwork already done (and connections made)

by the stymied special prosecutor Terry Robertson and his associate Kat

Kinch, and we could be ready to go, I felt, in months rather than years.

I was convinced that a trial court reference would be faster, cheaper,

and, because it could deal more globally with the polygamy law not just

at Bountiful, better than a renewed prosecution. I didn’t really believe

that the government wanted to start throwing people in jail for practising

polygamy; they simply wanted some certainty around a law that could be

used to head o religious exploitation, but which had been, for twenty-

seven years, unenforceable. I believed that Attorney General de Jong had

become interested in the plan, and he made time in his schedule on a

number of occasions to discuss the various options with me and the DAG

and ADAG.

Like most decisions in the Attorney General’s ministry, the DAG’s

support was crucial. Allan Seckel had been brought in as deputy under

Geo Plant, who’d introduced him to the legislat ure as the best lawyer in

British Columbia. is was not hyperbole. Seckel had the kind of quick

intellect and intensity of focus that scared the l iving daylights out of many

people. He had parlayed his love for basketball into an athletic schola rship

at Simon Fraser University, where he’d earned a commerce degree. But

it wasn’t Seckel’s basketball chops that stood out in university, it was his

phenomenally quick mind. He went on to become gold medallist at the

University of Victoria law school, capping his academic career at Cam-

bridge with a Master’s degree in law. Plant knew Seckel’s talents well

because they had been part ners at one of Vancouver’s largest blue-chip law

rms, Russell & DuMoulin (now Fasken Martineau DuMoulin LLP),

before Plant had left for politics.

Yet Seckel, who had become supportive of the idea of a trial court ref-

erence, suddenly vanished from the Attorney General’s ministry. On Oc-

tober 5, he was appointed deputy minister to premier Gordon Campbell

A Case for the Trial Court

95

and head of the BC Public Service to replace Jessica MacDonald, who

was leaving government. Granted, Seckel hadn’t gone far, and would

eventually be replaced by the redoubtable David Loukidelis, whom I had

also known and admired for years. But in the meantime we had an in-

terim DAG, Jerry McHale, whom I liked but didn’t really know, and

an Attorney General with whom I also had only a passing acquaintance.

Would the reference still go ahead?

As it turned out I needn’t have worried. Seckel would surely con-

tinue to have some inuence in the ministry; it would be a foolish interim

deputy who didn’t consult Seckel extensively during the transition, and

McHale, a delightful and clever man who got the job on an interim basis

because he so clearly didn’t want it permanently, was denitely no fool.

In any event, the decision to press ahead with the constitutional reference

would ultimately be that of Premier Gordon Campbell and his cabinet, so

Seckel, though far less accessible to me, was far from out of the loop in

his new position.

I had developed some proposed reference questions after consulting

with Copley and looking over various precedents from appellate court

cases. Some were convoluted and others simple; in the end, the Attor-

ney General himself weighed in on the questions (de Jong had a good

instinct for putting law in common language), and two basic questions

were agreed on:

(1) Is section 293 of the Criminal Code of Canada consistent with the

Canadian Charter of Rights and Freedoms? If not, in what particu lar

or particul ars and to what extent?

(2) What are the necessary elements of the oence in section 293 of

the Criminal Code of Canada ? Without limiting this question, does

section 293 require that the polygamy or conjugal union in ques-

tion involved a minor, or occurred in a context of dependence, ex-

ploitation, abuse of authority, a gross imbala nce of power, or undue

inuence?

e rst question needs little explanation. e second might at rst

appear perplexing. It arose from the historical concern of the Attorney

General that it might be impossible to nd evidence to support the pro-

hibition of polygamy per se, and that the Criminal Code provision could

only be saved if it were interpreted to apply only to “bad polygamy” and

not “good polygamy.” As our case would develop, the second question

began to fade toward irrelevance, as we became increasingly convinced

that, on the evidence, there was no such thing as “harmless” polygamy.