The British Columbia government has asked the province’s Supreme Court for its opinion on whether the federal law making polygamy a crime is constitutionally valid, Canadian Press reported.

The announcement in late October by Attorney-General Michael de Jong means the province will not appeal a court ruling that threw out charges of practicing polygamy laid against Winston Blackmore and James Oler, leaders of the fundamentalist Mormon community of Bountiful in south-eastern British Columbia.

“British Columbians and Canadians deserve and want to know,” de Jong said, “whether valid laws are in place that prohibit polygamous relationships, particularly when those relationships involve minors.”

Blackmore is alleged to have 19 wives and Oler is alleged to have three. They argue that Section 293 of the Criminal Code of Canada, which forbids multiple marriages, violates their constitutional right to the free exercise of their religion.

De Jong said placing the matter before the BC Supreme Court rather than the Court of Appeal “gives us the option to introduce evidence and witnesses, which will put a human face on polygamy . . .”

Joe Arvay, Blackmore’s lawyer, said his client would participate to make sure that his case against Canada’s polygamy law receives a fair hearing.

Justice Minister Rob Nicholson announced the federal government also plans to take part in the hearing. “The prohibition on polygamy is consistent with Canadian values and I am confident it’ll pass constitutional muster,” he told CTV. But he would not elaborate on how the government plans to argue in defence of the law.

In September, BC Supreme Court Justice Sunni Stromberg-Stein had quashed the charges against the accused on grounds that former Attorney-General Wally Oppal had overstepped his authority. After the special prosecutor Oppal had appointed to look into the case recommended that charges not be laid, Oppal had named a second special prosecutor who came to the opposite conclusion.

“The Attorney General [Oppal] upset the critical balance that . . . should be kept between political independence and accountability,” Stromberg-Stein wrote.

Despite numerous police investigations over the past 20 years, successive BC governments have balked at laying charges against Bountiful’s leaders. University of Western Ontario law professor Grant Huscroft believes that was a mistake.

“The province got it into its head that the laws were unconstitutional,” he told CTV. “. . . Rather than go ahead and charge and let the accused persons raise the argument about the law being unconstitutional, they got paralyzed into not doing anything and that’s allowed basically a generation of polygamous conduct in British Columbia to go on.”

Fundamentalist Mormons broke with the Mormon Church after it renounced polygamy in the 1890s.