A judge has dismissed a charter challenge brought forward by polygamous leader Winston Blackmore in Cranbrook Supreme Court.
Justice Sheri Donegan rejected Blackmore鈥檚 complaint of officially induced error and abuse of process to his polygamy prosecution that he raised following the conclusion of the Crown鈥檚 case during the trial.
After being found guilty of practicing polygamy last summer, Donegan held off entering formal convictions to Blackmore and co-accused James Marion Oler, until the constitutional challenge had been argued.
By raising the charter challenge and officially induced error arguments, Blackmore and Oler had been seeking a stay of proceedings.
Now that convictions have been entered into the record, Donegan ordered a pre-sentencing report that will come back to Cranbrook Supreme Court on May 15.
Both Blackmore and Oler are members of the fundamentalist Mormon community of Bountiful, a small community south of Creston in the southeastern corner of BC.
Blackmore had many of his daughters in the courtroom gallery for support during Donegan鈥檚 decision and a media scrum outside the courthouse following her ruling.
Blackmore reaction
Speaking outside the Cranbrook Law Courts and surrounded by some of his daughters, Blackmore said he was both surprised and unsurprised by Donegan鈥檚 ruling.
鈥淚 can tell you adultery is polygamy and anybody who knows anything at all about our faith, the foundation of our faith and the principles of our faith, knows that it included, from the very beginning, the principle of plural marriage,鈥� Blackmore said.
鈥淚 never made it up. I鈥檝e tried the best I鈥檝e could to do right with my family and I鈥檓 going to keep doing the best I can. Anything more than this is probably not appropriate to say at this time because I don鈥檛 know whether I鈥檓 going to appeal or whether I鈥檓 not, we鈥檙e going to have to see what the outcome is of the outcome.鈥�
Blackmore said he is not afraid to go to jail for his faith, noting that there have been many figures throughout history who were jailed for their religious beliefs.
He said that he doesn鈥檛 encourage anyone to practice polygamy, but doesn鈥檛 discourage anyone with a religious commitment to their faith.
鈥淲homever does [plural marriages], they do them when they reach an age where they can go and make their own choices in life,鈥� Blackmore said. 鈥淭hat鈥檚 one thing we鈥檝e been able to do is to say to people, 鈥楪row up, get old enough, make your own choices鈥� and we just go forward in our lives like that.鈥�
After 28 years of dealing with law enforcement and the courts over polygamy, Blackmore said the faith he shares with his family has been tested but remains strong.
鈥淵ou know, polygamy itself was driven underground for so many years and I have felt and my family has felt that if there鈥檚 a principle worth living, why can鈥檛 we just be open about it?鈥� he said. 鈥淟ive in the open about it? So my children are involved in everything; they鈥檙e in the schools, the universities, the fire departments, they鈥檙e becoming this and that, they鈥檙e in the minor league hockeys, they鈥檙e integrated throughout Creston and Cranbrook.鈥�
Addressing officially induced error
Blackmore鈥檚 charter challenge focused on legal arguments that centred on legal principles of officially induced error and abuse of process.
Blackmore, who was first investigated for polygamy in the early 1990s, was never charged by Crown because government officials believed that prosecuting polygamy under Section 293 of the Canadian Criminal Code was unconstitutional.
The ministry made that position clear in a public press release in 1992, which Blackmore argued gave him the right to continue his polygamous lifestyle without fear of prosecution.
Despite later investigations and the succession of special prosecutors that were appointed to analyze the issue of approving charges, Blackmore continued to enter into plural marriages, wrote Donegan.
A landmark constitutional reference case in 2011 that upheld the constitutionality of Section 293 of the Criminal Code has not affected any of his plural marriages.
鈥淲ith the Polygamy Reference several years behind us, he is well aware of the constitutional status of S. 293, yet does not depose that he has stopped practicing polygamy,鈥� wrote Donegan. 鈥淗e has never relied on the legal status of the provision in governing his affairs.鈥�
Charter relief denied
In arguing abuse of process, Blackmore said that it wasn鈥檛 fair he was being prosecuted after 25 years of investigations and legal proceedings against him.
Again, he relies on the press release released by the Criminal Justice Branch in 1992, while also arguing that prosecuting him for events that occurred before the reference ruling infringed his rights because the law was constitutionally vague.
Crown argued that prosecutors have the discretion to approve charges based on the evidence and that the reference case ruling in 2011 was a sea change in the legal landscape as it relates to prosecute polygamy.
Donegan said that Blackmore hadn鈥檛 proved he was prejudiced over the course of the proceedings.
鈥淗e does not argue that he could not receive a fair trial as a result of the state鈥檚 conduct over the years. He does not allege or suggest any misconduct on the part of prosecutors or investigators,鈥� wrote Donegan.
鈥濃�ather, he alleges specific conduct of that state that on its own, or cumulatively renders the bringning of the current prosecution, based on his actions before the Polygamy Reference, unfair and thus undermining the integrity of the judicial process.鈥�
Blackmore also argued that length of the pre-charge delay stemming from the Crown鈥檚 uneasiness to approve charges between 1992 and 2011 constitutes an abuse of process, however, Donegan said he failed to establish prejudice in the current proceedings.
Richard Peck, a special prosecutor who was appointed to investigate polygamy, recommended that the issue be brought to the courts as a reference case in 2007. Leonard Doust, a prominent Vancouver lawyer, was retained to offer a second opinion but he came to the same conclusion.
Terrence Robertson was then appointed in 2008 to look into the issue but his appointment was quashed by the courts after a successful challenge from Blackmore, who argued the government engaged in 鈥榮pecial prosecutor shopping鈥� to find someone willing to approve and pursue charges.
Blackmore argued that the appointment of current special prosecutor Peter Wilson was a continuation of that allegation but Donegan disagreed.
鈥淭here is no legitimate suggestion that Mr. Wilson鈥檚 appointment was motivated by the Attorney General鈥檚 desire to find a prosecutor who would reach a decisions she preferred,鈥� wrote Donegan. 鈥淭here is nothing unfair or offensive to societal notions of fair play and decency in Mr. Wilson鈥檚 appointment to consider charges in light of the significant changes to the legal and evidentiary landscapes.鈥�
Trial background
Both Blackmore and Oler were found guilty of practicing polygamy 鈥� Blackmore with 24 wives and Oler with 5 wives 鈥� following a trial in Cranbrook last year.
Evidence in the trial included testimony from former Bountiful members, RCMP and a Texas Ranger who was part of a law enforcement team that seized marriage, priesthood and personal records at a religious compound in Eldorado in 2008.
Crown counsel relied on those records to build their case against Blackmore and Oler, which carry significance in the fundamentalist Mormon faith as experts in the mainstream Mormon doctrine testified that according to religious beliefs, what is sealed on earth is also sealed in Heaven, meaning that meticulous records must be kept.
