Constitutional arguments in the case of Winston Blackmore, a polygamous leader near Creston, B.C., are underway in Cranbrook Supreme Court. Trevor Crawley photo

B.C. polygamous leader argues charge should be dropped in charter challenge

Winston Blackmore argues some of the evidence shouldn’t be used against him

Fundamentalist Mormon leader Winston Blackmore took to the stand in Cranbrook Supreme Court, testifying that he believed he was entitled to practice polygamy because RCMP never charged him with the offence after an investigation in the early 1990s.

Blackmore, who filed a notice to launch a charter challenge after being found guilty of practicing polygamy in July, is seeking a stay of the proceedings, an exemption from prosecution based on his religious beliefs, and alternatively — if convicted — an absolute discharge.

READ MORE: Winston Blackmore, James Oler found guilty of polygamy in landmark B.C. trial

After he was first detained by RCMP in 1990 who were investigating polygamy allegations, he says he was released pending a decision from the Attorney General, who decided not to purse a prosecution.

“I was relieved to learn that the Attorney General had concluded that my religious rights were protected under the Canadian Charter of Rights and Freedoms,” writes Blackmore in an affidavit filed with his charter notice of application. “I relied on that in proceeding with the blessings (marriages) performed after that.”

In his application, Blackmore argues his charter rights were violated, including right to religious freedom, right to fair trial and the right not to be found guilty on account of any act or omission unless, at the time of the act or omission, in constituted an offence.

In 2011, a constitutional reference case ruled that Section 293 of the Canadian Criminal Code, which defines polygamy, is constitutionally valid. However, Blackmore is arguing that polygamous marriages occurring before the decision should not be prosecuted, as it was not legally and constitutionally clear whether it was a crime.

Special prosecutor Peter Wilson called Blackmore to the stand to cross-examine him on the material in his affidavit as well as testimony given during a trial in an Utah court in a civil trial where he talks about the ages of his wives and the legality of the marriages.

In British Columbia, a person must be 19 years or older to marry, but anyone under that age must have written consent of both parents. Marriages of a person under 16-years-old can occur with both parental consent and a court order.

Wilson and Blackmore went back and forth during testimony as the prosecutor noted that Blackmore had married nine women who were under 19, two of which were 15 at the time of the ceremony. After questioning from Wilson, Blackmore admitted he had parental consent for all the marriages, but not in writing.

Blackmore said he never applied to have the marriages solemnized in court because he didn’t think ‘anyone would have given them the time of day.’

That’s because the marriages were unlawful, Wilson countered.

“Isn’t that why the Mormons fled across the US to Utah?” asked Wilson. “Isn’t that why Mormons left Utah to go to Cardston? And isn’t that why Mormons settled in Bountiful, because you’re being hounded by authorities who said that plural marriage is unlawful?”

Blackmore answered by saying as far as he knew, plural marriage, or polygamy, is legal and and lawful in the sight of God.

“I’m aware that in our country today, any man can associate with however many women he wants,” said Blackmore, “any woman can have as many men in her life as she wants, any man can have as many men in his life as he wants, and they can freely associate in any sort of capacity, sexual or other. I am aware the charter guarantees their right. And all I’m asking, My Lady, is that this charter grants us the same protection as it grants other citizens of Canada.”

However, Wilson suggested that Blackmore knows the marriages aren’t legal, lawful and proper in the eyes of the Government of Canada.

“Fair statement?” asked Wilson.

“Fair statement,“ Blackmore answered.

Much of Blackmore’s arguments on the constitutional issue centre around allegations of ‘special prosecutor shopping’ after the Attorney General and a string of special prosecutors declined to pursue polygamy charges from 1990 up to 2009.

Richard Peck, the first special prosecutor appointed in 2007, declined to approve polygamy charges, concluding that he believed it would fail based on the defence of religious freedom.

A second prosecutor, Leonard Doust came to the same conclusions as Peck and recommended a reference case to test the constitutionality of Section 293.

A third special prosecutor, Terry Robertson was appointed in 2008, who disagreed with his predecessors and approved polygamy charges, however, his appointment was successfully thrown out of court after a challenge from Blackmore.

A reference case was ordered, with a lengthly ruling that upheld the constitutionality of Section 293, that prosecuting polygamy does not violate an individual’s constitutional rights because the harms associated with polygamy outweigh the individual right to freedom.

That paved the way for Wilson’s appointment in 2012, who approved the polygamy charge against Blackmore and James Marion Oler in 2014.

Just Posted

Tommy Chong says cannabis legalization makes him proud to be a Canadian

Legendary marijuana advocate and comedian celebrates cultural milestone at Kelowna event

Black trucks figure prominently in Shuswap thefts

Chase RCMP investigating stolen vehicles from several communities

Silverbacks head coach Scott Atkinson talks injuries, upcoming games

Team is feeling confident ahead of matches against Alberni Valley, Vernon

Former Vernon man guilty of Japanese exchange student’s murder

Natsumi Kogawa was found at empty heritage mansion shortly after she was reported missing in 2016

‘Suspicious male’ not a threat, but police appreciate report

Salmon RCMP commend girls and bystanders on their vigilance

Cough cough: Kelowna MLA gets flu shot to prep for the cold season

Steve Thomson got his flu shot from Lakeside Medicine Centre Friday

B.C. tickets win big in Lotto Max draw

Jackpot carried over; B.C. tickets share Max Millions prizes

Shuswap’s young inchthyologists marvel at fish return

Sorrento Elementary students visit the Salute the Sockeye event at Tsútswecw Provincial Park.

Celebration salutes 60 years of medical care provided at Salmon Arm hospital

Hospital lauded for continuing advancements in top-notch care by B.C. health minister

Election 2018: Jay Simpson, candidate for Columbia Shuswap Regional District, Area F

One of two candidates vying to represent the North Shuswap provides a bio, talks about the issues.

Election 2018: Will Hansma, candidate for Columbia Shuswap Regional District, Area F

One of two candidates vying to represent North Shuswap provides a bio, talks about the issues.

‘Mom, I’m in trouble:’ Canadian faces 10 years for alleged graffiti

Brittney Schneider, another tourist caught spraying message on walls of Tha Pae Gate in Thailand

Feds consulting on national anti-racism strategy behind closed doors

Heritage Minister Pablo Rodriguez says people still face systemic racism in some communities

Most Read