Canada's law prohibiting polygamy is vulnerable to a legal challenge and could be struck down because of a conflict with religious freedom, says B.C. Attorney General Geoff Plant.
Mr. Plant, whose view is based on confidential legal opinions provided to the B.C. government on two occasions, said he has failed to convince the federal government to amend the anti-polygamy law.
He said the legal opinions have played a major role in the refusal by police over many years to lay charges against polygamists in the B.C. community of Bountiful, where girls as young as 13 have allegedly been forced to become "celestial wives" of much older men.
"There might well be a case where the court would have to deal with religious freedoms arguments, and I think there is at least some risk that those arguments might succeed," Mr. Plant said.
He added, however, that he supports the current RCMP investigation into alleged Criminal Code offences in Bountiful.
The federal government has offered to support B.C. in the prosecution, and Mr. Plant said he believes the recent move by the federal Status of Women department to commission studies into polygamy is part of the federal government's effort to prepare a defence of the anti-polygamy law.
"My view is that if there is evidence that would support a charge ... it is in the public interest to prosecute, because the section has never been struck down by a judge, by a court, and so it has to be treated as though it's good law," Mr. Plant said.
"I know that some prosecutors may well have some concerns about that, and we won't have to cross that bridge until we find out if there's real evidence out there."
Federal Justice Minister Irwin Cotler said this week he disagrees with B.C.'s position on Section 293 of the Criminal Code.
"In my view, it is constitutional and it is enforceable," Mr. Cotler said in an interview.
The first legal opinion on polygamy was provided to B.C.'s NDP government in 1992 by retired B.C. Appeal Court judge Richard Anderson.
The judge recommended the federal government scrap the polygamy law and come up with new laws that would "enhance desirable social objectives" without violating the Charter of Rights.
Mr. Plant said he commissioned a second opinion after the Liberals took power in B.C. in 2001. Former B.C. chief justice Allan McEachern agreed that a religious freedom defence will probably result in the law being struck down.
The RCMP has been investigating allegations of sexual abuse and sexual exploitation in Bountiful, which is controlled by the Fundamentalist Church of Jesus Christ of Latter Day Saints. Women who have escaped from the community over two decades have complained of sexual abuse, a high incidence of teenage mothers, and incest.
Mr. Plant, stressing that he can't get involved in directing prosecutions, said he is awaiting word on the probe's outcome.
"I hope that at some point I will get some measure of understanding about whether the police have made a report to Crown counsel," he said.
"Government has offered the support of social workers to the police investigation team if they think that would be helpful in trying to get at the evidence that may or may not exist inside what is obviously a closed community."
Mr. Plant, armed with both legal opinions, said he approached the federal government to propose possible changes to the polygamy section of the Criminal Code.
He said he suggested on two occasions that the law be changed to include alleged incidents in Bountiful such as exploitation, abuse and border trafficking of young girls.
But he said the federal government, convinced the law will be upheld, refused to touch the legislation.
Section 293 of the Criminal Code prohibits anyone from engaging in "any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage."
The law also prohibits anyone from celebrating, taking part in, or "is a party to" any ceremony, contract, or consent agreement involving polygamy.
The maximum penalty is five years in prison.
The 1982 Charter of Rights and Freedoms guarantees all Canadians "freedom of conscience and religion," and the Charter's equality rights section bans discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.