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.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Comments are closed

Just Posted

Victoria man collects 28 bags of trash along two-kilometre stretch of highway

20-year-old spent 12 hours collecting garbage near Thetis Lake

It’s showtime: Victoria theatre reopens with new COVID-19 protocols

Capitol 6 theatre and SilverCity Victoria have reopened with limited seating

Rapid bus system could increase frequency, reliability in Greater Victoria

BC Transit studies methods for improving major routes in Capital Region

Victoria Police searching for missing teen

Arianna Mckenzie, 17, last seen July 2

13 new B.C. COVID-19 cases, Langley Lodge outbreak ends

Health care outbreaks down to four, 162 cases active

Two injured hikers airlifted from North Vancouver Island Park

Campbell River and Comox Search and Rescue hoist team rescued the injured from Cape Scott Provincial Park

Alberta health minister orders review into response after noose found in hospital in 2016

A piece of rope tied into a noose was found taped to the door of an operating room at the Grande Prairie Hospital in 2016

B.C.’s major rivers surge, sparking flood warnings

A persistent low pressure system over Alberta has led to several days of heavy rain

B.C.’s Indigenous rights law faces 2020 implementation deadline

Pipeline projects carry on as B.C. works on UN goals

‘Mind boggling’: B.C. man $1 million richer after winning Lotto 6/49 a second time

David O’Brien hopes to use his winnings to travel and of course keep playing the lottery

B.C. teacher loses licence after sexual relationships with two recently-graduated students

The teacher won’t be allowed to apply for a teaching certificate until 2035

Lower Mainland teacher facing child pornography charges

Elazar Reshef, 52, has worked in the Delta School District

Most Read