Judge approves another delay in polygamy trial
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 press 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 that the verdict should be stayed or that 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 that the polygamy section of the Criminal Code was “obsolete” and that 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. After a series of legal misadventures involving special prosecutors, Oppal’s opinion was upheld in 2011 following a constitutional reference case.
Chief Justice Robert Bauman determined that the law is a “justifiable limit on religious freedom” because of its “inherent harms.”
Fast forward to now. Among the questions that Justice Sheri Donegan must determine is whether it was reasonable for polygamists — in this case, fundamentalist Mormons — to believe that 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 plain-spoken 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.”
Suffredine said, “I find it close to offensive that the attorneygeneral can issue a press release and then say everyone should have ignored it.
“If I was an average person and heard the attorney-general ruled that what I did would not be prosecuted and it was not unconstitutional, I wouldn’t seek legal advice from a lawyer. I would presume that from the highest source that I would have to accept it as true even if I think it might not be.”
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 that officially induced error is “an exceptional defence.”
“It’s not a justification,” he said. “(Officially induced error) is only where the state is at fault or has contributed to the fate of an individual by setting them on the wrong path.”
But Blackmore and Oler were already practising polygamy. All of Oler’s marriages took place before the 1992 press 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 — “a sea change in the legal landscape” — Blackmore continues to live with multiple wives in a cluster of residences in Bountiful.
“Nothing in his conduct has changed,” Wilson said.
In addition to the stacks of material that the lawyers had given Donegan prior to the hearing, the amicus only provided his submission to the court and the prosecutors on 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 and would have concluded in July with the two men’s convictions if not for Suffredine filing the constitutional application (the subject of this week’s hearing) in mid-trial.
The application was set to be heard in November, but was adjourned because Suffredine filed Blackmore’s affidavit on the eve of the hearing.
Now, because of this further delay to allow the prosecutors time to respond to the amicus’s submissions, it will be Jan. 22 before a date is even set for the judge to deliver her decision.