Lawyer in polygamy trial to seek stay; says evidence use improper
CRANBROOK — A lawyer for a Mormon fundamentalist leader says he will be seeking a stay of a polygamy charge because the evidence being used in the B.C. Supreme Court trial was presented in a previous constitutional reference case.
Blair Suffredine, the defence counsel for Winston Blackmore, said he intends to file an application for abuse of process next week based on the Crown’s reliance on evidence that was collected before a constitutional reference test in 2011 that deemed polygamy a criminal offence.
Blackmore, the head of a religious group in the southeastern B.C. community of Bountiful, is accused of marrying 24 women.
Suffredine’s argument is based on a previous polygamy charge against Blackmore that was thrown out of court over allegations of “special-prosecutor shopping.”
In 2007, Richard Peck was appointed as a special prosecutor to examine evidence of polygamy stemming from a police investigation into Blackmore and James Oler, who also served as a bishop in the fundamentalist community.
Peck recommended that a constitutional reference case be brought forward to test the criminality of polygamy, rather than pursing charges against the two men.
Former B.C. attorney general Wally Oppal later appointed Terry Robertson to the case, who decided to move forward with a criminal prosecution.
The charge was eventually thrown out, as well as Robertson’s appointment as a special prosecutor, on the grounds that Oppal had unfairly searched for a prosecutor willing to pursue charges.
A constitutional-reference case went forward with a ruling in 2011 that upheld the law criminalizing polygamy, determining that it doesn’t violate religious freedoms guaranteed in the Charter of Rights and Freedoms.
Suffredine said his charter argument next week will rest on the fact that all evidence at the current trial was collected before the constitutional reference case and. therefore, cannot be used.
“This prosecution is all based on the old evidence that predated the reference and [there is] no new evidence of anything else since the reference,” Suffredine said outside court Thursday. “Therefore, it is an unfair trial to now come back and prosecute them when nobody knew at the time whether they were committing any crime.”