A Case for the Trial Court

AuthorCraig Jones
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 simplic iterthere 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 af ter
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 ta xpayer
millions, while the legal aid budget for crimina l defendants and abused
wives in divorce proceedings was merci lessly 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
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 everyt hing put in front
of him and was decisive when circumstances required it. e economic
downturn had imposed tight sca l restraints across government, and the
idea that a cumbersome and expensive prosecution, using excel lent 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 throw ing people in jail for practising
polygamy; they simply wanted some certaint y 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 k ind 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 & Du Moulin (now Fasken Martineau DuMoul in 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
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 a nd 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 Can ada consistent with the
Canadian Charter of Rights and Freedoms? I f not, in what particu lar
or particul ars and to what extent?
(2) What are the necessary elements of the oence in s ection 293 of
the Criminal Code of Canada ? Without limiting this question, does
section 293 require th at the polygamy or conjugal union in ques-
tion involved a minor, or occurred in a c ontext of dependence, ex-
ploitation, abuse of authority, a gross imbala nce of power, or undue
e rst question needs little ex planation. 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 poly gamy 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.

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