Polygamy trial takes twist with religious freedom challenge
Constitutional argument comes as a surprise
IF THE LAW IS UPHELD, MEMBERS OF THE BOUNTIFUL COMMUNITY WILL HAVE FAIR NOTICE THAT THEIR PRACTICE OF POLYGAMY MUST CEASE. IF THEY, IN TURN, PERSIST IN THE PRACTICE, A PROSECUTION COULD BE INITIATED AT THE CROWN’S DISCRETION. — LEGAL REPORT
CRANBROOK, B.C. • Suddenly, the polygamy trial of two fundamentalist Mormon leaders was transformed this week from a criminal trial into a constitutional challenge involving religious freedom.
Two weeks into the trial of Winston Blackmore and James Oler, Blackmore’s lawyer gave notice that he will argue the constitutional guarantee protects Blackmore’s right to have as many wives as he wants.
Blair Suffredine wants Justice Sheri Donegan to quash the charge against Blackmore.
The constitutional challenge came after weeks of Suffredine saying that he would not dispute the validity of Criminal Code Section 293 that outlaws polygamy.
The surprise challenge comes just days before special prosecutor Peter Wilson had expected to close his case.
It also comes despite the requirement under the Constitutional Questions Act that anyone seeking to raise a constitutional or Charter of Rights and Freedoms argument give 14 days notice to other lawyers involved in the case as well as the federal Crown prosecutor.
Because he hadn’t seen the application yet, Wilson refused to comment Thursday about whether he would ask for a two- week adjournment in the trial to prepare his constitutional arguments.
Outside the court, Suffredine said he didn’t give notice earlier because he hadn’t fully grasped some of the details along the Byzantine legal path that led to this trial. It’s a history that dates back decades and includes RCMP investigations, half a dozen legal opinions, four special prosecutors, previous charges against the two men stayed and even a constitutional reference case.
That reference case concluded in 2012 with the B.C. Supreme Court upholding the law on the basis that polygamy’s harms were sufficient to warrant a limit on religious freedom as well a freedom of association and expression.
Referring the law to the court was initially recommended a decade ago by the first special prosecutor, Richard Peck. He said a reference was preferable to a trial, which could be “a cumbersome and time- consuming process.”
Peck said “an authoritative statement from the courts” was needed because since the 1990s, the B.C. attorney general’s ministry had refused to press charges based on legal opinions suggesting that the law was invalid.
Peck disagreed and wrote that the harms of polygamy were extensive enough that they would likely be considered a reasonable limit on Charter- protected freedoms.
“Religious f reedom in Canada is not absolute,” he said. “Rather it is subject to reasonable limits.”
Still, Peck’s report is at the heart of Suffredine’s argument.
“What he said is have the reference then come back and if they persist in this sort of conduct, then prosecute because they’ll know and they’ll be on fair notice that they are committing a crime,” Suffredine said in an interview.
He added that the prosecution is based on old evidence that predates the reference case, adding it’s “an unfair trial to now come back and prosecute them when nobody knew at the t i me whether t hey were committing an offence.”
Blackmore’s indictment covers the period from Oct. 12, 1990, to Feb. 28, 2014, and lists 24 women. Oler’s indictment covers the peri od from May 1993 until Jan. 7, 2009. The 60-year-old Blackmore is alleged to now have had 24 wives and he’s said to have 145 children. Oler, 53, has had five wives.
Blackmore’s first and only legal wife, Jane Blackmore, testified this week for the prosecution. She said she confronted his husband after he married his 12th wife and fathered 46 children.
“I did go to him and ask where are you taking this,” she testified Tuesday.
“I told him I am feeling a heavy responsibility for the number of children we have and the number of women in this family that need care and support. I just felt a huge weight of responsibility for children and for them to get what they needed.”
When her husband told her he was doing God’s work, Jane said she replied: “I’m sorry I believe in a God that wouldn’t ask you to do something that was impossible.”
She left the fundamen- talist Mormon community known as Bountiful in 2003, and divorced Winston two years later.
Evidence entered so far had i ncluded: marriage and personal records seized from the Fundamentalist Church of Jesus Christ of Latter- day Saints in 2008; birth certificates for the defendants, their wives and children; and Blackmore’s 2009 police interview.
Outside court, Suffredine disputed the validity of the church records.
“I hate to say it but the records they’ve put in there’s no real basis for them ... What I understand the truth is is that those were things that were re- created about 10 years after the fact and thrown out. Somebody must have picked them out of the garbage and sent them somewhere because they’re not original records at all.”
Crown prosecutor Wilson said he would have to see the application before deciding whether to ask for an adjournment to give him time to prepare constitutional arguments.
But beyond what may be a prolonged process of proving polygamy’s harms, the lawyers will likely parse exactly what Peck meant in the final lines of his report.
“If t he l aw is upheld, members of the Bountiful community will have fair notice that their practice of polygamy must cease. If they, in turn, persist in the practice, a prosecution could be i nitiated at the Crown’s discretion.”
The trial continues Monday.