03/26/2012 12:28 EDT | Updated 05/26/2012 05:12 EDT

B.C. government gives special prosecutor power to charge in polygamy case

VANCOUVER - The widespread practice of multiple marriage in the isolated community of Bountiful, B.C., is once again under threat of criminality after the provincial government empowered a special prosecutor to lay charges linked to an recent RCMP investigation.

Peter Wilson has been directed to add polygamy and other sexual exploitation offences to his examination of teen bride trafficking, Attorney General Shirley Bond said Monday as she announced the government won't seek further review of a landmark case that upheld a law banning the multiple unions.

Last fall, a B.C. Supreme Court judge found the harm polygamy causes to women and children outweighs the law's violation of the right to religious freedom.

But whether the expanded mandate would eliminate polygamy as its opponents hope or simply single out a couple of its most notorious advocates may yet depend on the Crown's tact, say observers.

Kasari Govender, a lawyer and the executive director for West Coast LEAF, said she's pleased the special prosecutor has new powers, but is disappointed the government won't shoot for an ironclad ruling by referring the decision to a higher court.

"We lose that record and we now move to the context of an individual prosecution," said Govender, for the organization that uses the law to further women's equality.

She said that means the systemic problems of polygamy, which became clear during the constitutional reference case, may once again get pushed to the background. Another possibility is that a charge based on the constitutional question could re-open the question, but the issue would have to be examined from scratch.

"Charges may be laid quicker, but whether we have a legal answer and whether the charges are upheld may not actually happen any quicker," she said.

Over the past two decades, police have launched several failed investigations into the 1,000-member religious community in southeastern B.C. The last occurred in 2009, when charges were thrown out against Winston Blackmore and James Oler, two leaders of divided factions in the town.

In Victoria, Bond told reporters she has been reassured by provincial lawyers the lower court ruling is powerful enough to support criminal charges against those in polygamous relationships without getting the opinion of a higher court.

"I asked our team to take a very thorough look at the ruling because we wanted to make sure we had enough strength in that ruling to proceed with potential polygamy charges," she said. "Our team believes that we can move forward."

The province weighed the consideration to appeal against the impact of more court proceedings involving people who have experienced polygamy first-hand, she said.

Wilson was appointed by the province's criminal justice branch earlier this year to examine possible charges related to the movement of teen brides across the U.S. border to marry much older men.

He will now independently review any information brought forward from the ongoing RCMP investigation to determine if the evidence warrants going ahead with polygamy or other charges.

Nick Bala, a law professor at Queen's University in Kingston, Ont., said he agrees with Bond that the court's ruling was persuasive.

But he too is not convinced someone charged with polygamy won't raise the constitutionality argument again.

"It's possible they will have to relitigate it," said Bala, who provided affidavit evidence at the constitutional hearings but wasn't asked to testify.

That issue is coupled with the difficulty presented around charging the leaders —who have openly admitted to having multiple wives — on the same offence, he said.

"Going ahead with some of the other charges ... is probably going to be in someways be less problematic than going ahead at this point with the polygamy charges," Bala said.

Opposition New Democrat attorney general critic Leonard Krog called the government's decision welcome news, adding he now expects charges to be laid in the near future.

"It is now up to the government to vigorously pursue this," he said in Victoria. "How long can you allow this to continue? We know that children have been exploited in British Columbia for a very long time."

Even before the polygamy decision was released last year, Mounties sent investigators to the United States when criminal allegations surfaced during the court case.

The RCMP investigation continues to be active but B.C. RCMP Supt. Ray Bernoties could not say when a file will be forwarded to the prosecutor.

The court heard that more than two dozen girls as young as 12 were shipped south to marry older men, including Warren Jeffs, the once-powerful leader of the Fundamentalist Church of Jesus Christ of Latter-Day Saints.

Jeffs has since been sentenced to life in prison for sexually assaulting two teenage girls.

The 2009 case involving Blackmore and Oler triggered the constitutional reference and uncovered the movement of the child brides.

Blackmore is also fighting allegations in federal Tax Court that he should have claimed and extra $1.5 million in income over five years starting in 2000. He told the Tax Court in January that he had 22 wives and at least 67 children.

He did not return calls for comment.