A judge has dismissed a charter challenge brought forward by polygamous leader Winston Blackmore in Cranbrook Supreme Court.
Justice Sheri Donegan rejected Blackmore’s complaint of officially induced error and abuse of process to his polygamy prosecution that he raised following the conclusion of the Crown’s 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’s decision and a media scrum outside the courthouse following her ruling.
Speaking outside the Cranbrook Law Courts and surrounded by some of his daughters, Blackmore said he was both surprised and unsurprised by Donegan’s ruling.
“I 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,” Blackmore said.
“I never made it up. I’ve tried the best I’ve could to do right with my family and I’m going to keep doing the best I can. Anything more than this is probably not appropriate to say at this time because I don’t know whether I’m going to appeal or whether I’m not, we’re going to have to see what the outcome is of the outcome.”
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’t encourage anyone to practice polygamy, but doesn’t discourage anyone with a religious commitment to their faith.
“Whomever does [plural marriages], they do them when they reach an age where they can go and make their own choices in life,” Blackmore said. “That’s one thing we’ve been able to do is to say to people, ‘Grow up, get old enough, make your own choices’ and we just go forward in our lives like that.”
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.
“You know, polygamy itself was driven underground for so many years and I have felt and my family has felt that if there’s a principle worth living, why can’t we just be open about it?” he said. “Live in the open about it? So my children are involved in everything; they’re in the schools, the universities, the fire departments, they’re becoming this and that, they’re in the minor league hockeys, they’re integrated throughout Creston and Cranbrook.”
Addressing officially induced error
Blackmore’s 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.
“With 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,” wrote Donegan. “He has never relied on the legal status of the provision in governing his affairs.”
Charter relief denied
In arguing abuse of process, Blackmore said that it wasn’t 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’t proved he was prejudiced over the course of the proceedings.
“He does not argue that he could not receive a fair trial as a result of the state’s conduct over the years. He does not allege or suggest any misconduct on the part of prosecutors or investigators,” wrote Donegan.
”…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.”
Blackmore also argued that length of the pre-charge delay stemming from the Crown’s 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 ‘special prosecutor shopping’ 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.
“There is no legitimate suggestion that Mr. Wilson’s appointment was motivated by the Attorney General’s desire to find a prosecutor who would reach a decisions she preferred,” wrote Donegan. “There is nothing unfair or offensive to societal notions of fair play and decency in Mr. Wilson’s appointment to consider charges in light of the significant changes to the legal and evidentiary landscapes.”
Both Blackmore and Oler were found guilty of practicing polygamy — Blackmore with 24 wives and Oler with 5 wives — 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.