The British Columbia Supreme Court brought an end to the polygamy charges against the residents of Bountiful yesterday without a trial. As a result the courts have avoided dealing with the merits of the question of whether or not Canada's polygamy laws can withstand the Charter of Rights and Freedoms. The decision (which can be found here) instead focuses on the question of whether or not the Attorney General can effectively override the final decision of a special prosecutor not to prosecute someone by appointing a new special prosecutor who will. Not surprisingly the Court was not too happy with this idea. It is too easy to say the Attorney General can get around an inconvenient final decision by simply appointing a new decision maker. As a result, the Court and quashed the prosecution on the basis that this was not permitted under the statute allowing for special prosecutors.
This decision is a strong defence of the general purpose of the special prosecutor laws but it does raise a number of difficult questions and highlights the caution that should be taken in appointing a special prosecutor. Special prosecutors are classically appropriate in situations where a crime may have been committed where the government cannot be seen as making the decision to prosecute or not. For example, the Attorney General would be put in a hopeless position if, for example, evidence of political corruption by a senior member of the cabinet were found. A decision not prosecute would detract from the public's confidence in the legal system, yet a decision to prosecute raises the question of whether or not the accused was being put through the legal mill for appearances sake. The appointment of a special prosecutor outside the ranks of the civil service brings an element of independence to this process.
The question of whether or not to prosecute the alleged polygamists at Bountiful is a different sort of question altogether. Here the questions revolve not around the independence of the prosecutor but the correct weighing of the various factors that go into deciding whether or not to prosecute. The earlier decisions not to prosecute largely turned on the question of whether or not Canada's polygamy laws would withstand Charter scrutiny. The special prosecutors (together with many other senior lawyers) at the time thought not, but no-one can suppose this is anything other than a debatable question. The Charter is an evolving beast and is not insensitive to changing social mores and concerns -- particularly in the balancing act that the Court engages in when deciding how s. 1 (the reasonable limits provision) applies. Also societal views with respect to polygamy -- which are intimately tied up with concerns around the protection of equality and the defence of underage brides -- are evolving and the balance of legal, social and political concerns that go into a decision to prosecute or not can change.
From a social perspective, the decision of the Court leaves Bountiful in an odd position. Has this decision effectively immunized the residents of Bountiful from ever being prosecuted for polygamy -- even if the polygamy laws are ultimately upheld? Put more starkly, are the women of Bountiful now forever deprived of the protection that may flow from Canada's polygamy law because of the decision of a special prosecutor in the past? More generally, have all of us as Canadians been deprived of what may be the best opportunity to test the legality of the polygamy laws in a context where the modern concerns about polygamy actually seem to arise?
These problems flow not from the Supreme Court's judgement -- which is likely correct -- but from the decision to appoint special prosecutors in the first place. The special prosecutor law was not intended as a "get out of jail free card" for occasions when the Attorney General wants to avoid a hard decision. The Attorney General is there to make hard decisions about when a prosecution is merited. There is a professional corps of lawyers who are hired to make precisely this kind of decision and do so all the time. Outside advice can be obtained and considered but generally it should be the Attorney General that makes the decision. The special prosecutor should not become a means of dodging such decisions and, as this case shows, such a passing of the buck to someone outside of the elected and accountable system of government can undermine the public interest in seeing legal issues brought forward and resolved.