Polygamy ruling with roots dating to 1992 now stretching into new year

For two decades, B.C. Attorneys-General and prosecutors refused to lay polygamy charges and believed, based on legal opinions, that the Criminal Code sanctions against the practice were constitutionally invalid.

It began in 1992 with a news release explaining why two men from the fundamentalist Mormon community of Bountiful would not be charged. The polygamy law, it said, was unconstitutional because of the guarantee of religious freedom.

People in Bountiful celebrated. They took it to mean that, after a century, it was suddenly legal to take multiple wives, even though the law remained on the books. And marry, they did. The bishop, Winston Blackmore, married 23 women in religious ceremonies, in addition to his one legal wife. James Oler, who succeeded Blackmore as bishop, took four wives in addition to his one legal wife.

In July, both men were finally convicted on one count each of polygamy.

This week in B.C. Supreme Court, Blackmore argued the verdict should be stayed or he should be exempt from punishment because his constitutional rights to a fair trial were trampled.

A similar argument was made on Oler’s behalf by the amicus (friend to the court), Joe Doyle, appointed by the court after Oler chose not to actively participate in the trial or hearing.

At the heart of Blackmore’s constitutional application is that 1992 news release.

It said that, based on “exhaustive” research by legal experts both in the Attorney- General’s ministry and from outside, it was unanimously concluded that the polygamy law was unconstitutional because of a Charter guarantee of religious freedom.

It went on to say the polygamy section of the Criminal Code was “obsolete” and the best course of action wasn’t prosecution, but to “encourage” the federal government to rewrite the law.

There was another RCMP investigation in 2004, but again no charges were laid.

But when Wally Oppal became Attorney-General in 2006, he said he disagreed that the law was invalid. Oppal’s opinion was upheld in 2011 following a constitutional reference case.

Chief Justice Robert Bauman determined the law is a “justifiable limit on religious freedom” because of its “inherent harms.”

Fast forward to now. Among the questions Justice Sheri Donegan must determine is whether it was reasonable for polygamists — in this case, fundamentalist Mormons — to believe they would not be prosecuted even though the Criminal Code law remained.

But beyond that, the judge needs to determine whether, by following what turned out to be bad advice from a succession of Attorneys-General, that Blackmore and Oler were legally disadvantaged and their legal rights breached.

If she does decide that, Donegan must then determine whether the law allows or requires that they receive some sort of legal remedy in the form of their convictions being stayed or to be individually exempted from that one section of the Criminal Code. And if they can be exempted, should that exemption be limited to a specific time period.

Both Blackmore’s lawyer Blair Suffredine and Doyle made plainspoken arguments. As Doyle said, it wasn’t as if the advice was being given by “some guy over the counter — it was the highest law officer in British Columbia.”

The prosecutors, however, spent several hours Thursday making legal arguments about prosecutorial discretion, the threshold and standards of proof needed before a court should step in with the extraordinary remedy of staying convictions to valid laws or make constitutional exemptions for individuals.

Ignorance of the law is not a defence, Micah Rankin said, noting officially induced error is “an exceptional defence.” “It’s not a justification,” he said. But Blackmore and Oler were already practicing polygamy. All of Oler’s marriages took place before the 1992 news release.

Six of Blackmore’s marriages were before 1992. And, as Rankin’s colleague Peter Wilson pointed out, even after the polygamy reference case upheld the law, Blackmore continues to live with multiple wives in a cluster of residences in Bountiful.

In addition to the stacks of material the lawyers gave Donegan before the hearing, the amicus only provided his submission to the court and the prosecutors Wednesday.

Wilson didn’t object to the late addition. But he did ask for and received permission from Donegan to have time to prepare a written response by Jan. 15.

It is yet another delay in a case that began in April.

Now it will be Jan. 22 before a date is even set for the judge to deliver her decision.