CRESTON, British Columbia — After years of deliberation, the British Columbia attorney general has charged two members of a fundamentalist Mormon sect with polygamy.

Attorney General Wally Oppal announced charges Jan. 7 against the leader of the Bountiful community, Winston Blackmore, and James Oler, who is something of a rival claimant to Bountiful’s leadership. Oppal charged Blackmore with having 20 wives and Oler with having two.

But Blackmore’s lawyer, Blair Suffredine, believes that the recent ruling by the Supreme Court of Canada using the Canadian Charter of Rights and Freedoms to legalize same-sex “marriage” makes it impossible for it to uphold the polygamy law against his client.

So do many conservative opponents of polygamy.

Suffredine told reporters that if same-sex “marriage” is legal, then so is any conjugal relationship between consenting adults.

“You can live in a communal relationship and not breach any laws, but if you actually promise to look after the other person in a ceremony, you’ve committed a criminal act.”

Blackmore said at a court appearance last month, “I’ve taken time last night to read the Charter of Rights and Freedoms — twice — not just our basic Canadian rights, but our equality rights. I think if I am guilty of anything, it’s being a Canadian and just living my religion.”

Charging the polygamist husbands of Bountiful, near Creston, in the B.C. interior, has long been Oppal’s ambition. But a succession of special prosecutors he appointed to review the case against them recommended leaving the law unused lest it fail against a freedom-of-religion claim.

The Canadian Charter of Rights and Freedoms has been used so extensively to overturn existing statutes that the best advice the British Columbia government could get for years was that the century-old polygamy law would be overthrown by the 37-year-old charter’s protection for religious freedom.

The possibility of charging the husbands, both middle-aged men with teenage wives, with child abuse was abandoned for lack of evidence — or willing witnesses. However, the latest special prosecutor, Terrence Robertson, recommended proceeding.

“I am pleased a prosecution will be proceeding,” commented Oppal, “as it will provide legal clarity as to the constitutionality of Section 293 of the Criminal Code.”

‘Balancing Act’

Joanne McGarry, executive director of the Canadian Catholic Civil Rights League, which usually relies on the Charter of Rights and Freedoms for its defense of Catholic rights, says the polygamy case shows that no freedom is absolute.

“It’s a delicate balancing act,” said McGarry, noting charter decisions have protected the right of Canada’s Sikhs, for example, to wear ceremonial daggers in some circumstances but not in others.

McGarry said in this case it is the rights of the teenage girls that need protection from coercion.

“No 16-year-old can make a decision like that freely,” she said, adding that the Catholic Church has required the free consent of both parties to marriage for many centuries.

Everyone expects the case to end up in the Supreme Court, but there is disagreement over how the court will rule.

Joseph Ben-Ami, president of the Canadian Centre for Policy Studies, thinks it is “probably inevitable that the Supreme Court will throw out the polygamy law.”

The Supreme Court’s earlier ruling in favor of same-sex “marriage” “really has opened the door,” said Ben-Ami. After all, he said, “if they couldn’t protect traditional marriage with all the evidence in social science that being raised by one mother and one father is the best thing for children, then they have no logical grounds for outlawing polygamy — or for that matter, marriages involving several men and women at once.”

Ben-Ami traces the legal quandary over polygamy back to the enshrinement of the Charter of Rights and Freedoms in the Canadian Constitution in 1982.

“I believe its authors had in mind the use of the charter and the courts to bring about social change and changes to statute and common law.” This has turned the judiciary into legislators. “It’s fundamentally undemocratic,” he said: Canada’s judges are all appointed.

‘To Be Consistent …”

In addition, the constitution is being interpreted by the judiciary and especially the Supreme Court as a “breathing, living document,” responsive to changing public values, which, in Ben-Ami’s view, defeats the purpose of a constitution. Ironically, said Ben-Ami, while legislators have found Canada’s Constitution virtually impossible to change, the judiciary changes it with impunity.

Ted Byfield, founder of a Christian news magazine that chronicled Canada’s shift in values for 30 years until its demise in 2003, said the case will expose the confused situation in which the Supreme Court has put itself after decades of pandering to public opinion.

“They ruled in favor of same-sex ‘marriage’ because that was what the feminists wanted,” said Byfield. But the legal position the court relied on was that the state had no reason to prefer one form of marriage to another. To be consistent legally, he said, “it should say the state has no business preferring one wife to two or one husband to two.”

But feminists are opposed to polygamy, as is the vast majority of Canadian public opinion, so the case will “force the court to declare whether its judgments are based on law or that portion of public opinion they care about.”

The case has a long road to travel, however, before it reaches the Supreme Court.

Steve Weatherbe writes from