A judge has dismissed a charter challenge brought forward by polygamous leader Winston Blackmore in Cranbrook Supreme Court.
Justice Sheri Donegan rejected Blackmore含羞草研究社檚 complaint of officially induced error and abuse of process to his polygamy prosecution that he raised following the conclusion of the Crown含羞草研究社檚 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含羞草研究社檚 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含羞草研究社檚 ruling.
含羞草研究社淚 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,含羞草研究社� Blackmore said.
含羞草研究社淚 never made it up. I含羞草研究社檝e tried the best I含羞草研究社檝e could to do right with my family and I含羞草研究社檓 going to keep doing the best I can. Anything more than this is probably not appropriate to say at this time because I don含羞草研究社檛 know whether I含羞草研究社檓 going to appeal or whether I含羞草研究社檓 not, we含羞草研究社檙e going to have to see what the outcome is of the outcome.含羞草研究社�
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含羞草研究社檛 encourage anyone to practice polygamy, but doesn含羞草研究社檛 discourage anyone with a religious commitment to their faith.
含羞草研究社淲homever does [plural marriages], they do them when they reach an age where they can go and make their own choices in life,含羞草研究社� Blackmore said. 含羞草研究社淭hat含羞草研究社檚 one thing we含羞草研究社檝e been able to do is to say to people, 含羞草研究社楪row up, get old enough, make your own choices含羞草研究社� and we just go forward in our lives like that.含羞草研究社�
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.
含羞草研究社淵ou know, polygamy itself was driven underground for so many years and I have felt and my family has felt that if there含羞草研究社檚 a principle worth living, why can含羞草研究社檛 we just be open about it?含羞草研究社� he said. 含羞草研究社淟ive in the open about it? So my children are involved in everything; they含羞草研究社檙e in the schools, the universities, the fire departments, they含羞草研究社檙e becoming this and that, they含羞草研究社檙e in the minor league hockeys, they含羞草研究社檙e integrated throughout Creston and Cranbrook.含羞草研究社�
Addressing officially induced error
Blackmore含羞草研究社檚 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.
含羞草研究社淲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,含羞草研究社� wrote Donegan. 含羞草研究社淗e has never relied on the legal status of the provision in governing his affairs.含羞草研究社�
Charter relief denied
In arguing abuse of process, Blackmore said that it wasn含羞草研究社檛 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含羞草研究社檛 proved he was prejudiced over the course of the proceedings.
含羞草研究社淗e does not argue that he could not receive a fair trial as a result of the state含羞草研究社檚 conduct over the years. He does not allege or suggest any misconduct on the part of prosecutors or investigators,含羞草研究社� wrote Donegan.
含羞草研究社澓卟菅芯可绂Rather, 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.含羞草研究社�
Blackmore also argued that length of the pre-charge delay stemming from the Crown含羞草研究社檚 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 含羞草研究社榮pecial prosecutor shopping含羞草研究社� 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.
含羞草研究社淭here is no legitimate suggestion that Mr. Wilson含羞草研究社檚 appointment was motivated by the Attorney General含羞草研究社檚 desire to find a prosecutor who would reach a decisions she preferred,含羞草研究社� wrote Donegan. 含羞草研究社淭here is nothing unfair or offensive to societal notions of fair play and decency in Mr. Wilson含羞草研究社檚 appointment to consider charges in light of the significant changes to the legal and evidentiary landscapes.含羞草研究社�
Trial background
Both Blackmore and Oler were found guilty of practicing polygamy 含羞草研究社� Blackmore with 24 wives and Oler with 5 wives 含羞草研究社� 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.
