Delay may aid polygamist’s case
Convicted polygamist Winston Blackmore believes Canada’s guarantee of religious freedom gives him the right to have multiple wives.
But it is the Constitution’s legal rights sections that may provide the strongest reason for a judge to stay his guilty verdict or exempt him from punishment.
The former bishop of the fundamentalist Mormon community of Bountiful was found guilty in July of one count of polygamy along with James Oler, another former bishop.
On Wednesday, Blackmore’s lawyer argued in B.C. Supreme Court that his client was unfairly tried because the provincial government dithered for 25 years before charging him with a single count of polygamy for having two dozen wives.
“To be candid, delay is the only decent argument if there is a prejudice to the accused,” Blair Suffredine told Justice Sheri Donegan. “I’d say it’s a sort of thing that ... brings the administration of justice into disrepute.
“The Crown has delayed for decades, and the average citizen would say that’s outrageous.”
For 25 years, a succession of B.C. attorneys-general refused to charge Blackmore and other men from the community because they had legal opinions that concluded the religious freedom guarantees invalidated the Criminal Code’s polygamy section.
It was only in 2007 that doubt was cast on the position first outlined in a 1992 news release that explained why Blackmore and another man from Bountiful were not being charged.
It was reiterated in a 2006 news release following another RCMP investigation. Once again, Blackmore and James Oler, another former bishop of Bountiful (and Blackmore’s co-defendant in this case), would not be charged because it was deemed that there was neither a substantial likelihood of conviction or any public interest in pursuing a prosecution.
Special prosecutor Richard Peck was the first to provide an opinion casting doubt on the previous policies. He concluded that the ban was a reasonable limit on religious freedom to protect the fundamental rights of others.
But rather than charging individuals, Peck recommended that the question of the law’s validity be subjected to a judicial review.
That eventually happened, but not without missteps in between that included Blackmore and Oler being charged and having those charges stayed.
Suffredine argued that there is no higher legal authority than the provincial attorney-general, whose job it is to ensure that the laws are enforced.
So when succeeding attorneysgeneral said the law was invalid, Blackmore, Oler and others in Bountiful took them at their word. They continued taking multiple wives in religious ceremonies because they believe that having plural wives is the only way to achieve the highest order of heaven.
Because, as Suffredine said Wednesday, “(Blackmore) can’t be deemed to know the law if the chief law officer is telling him something to the contrary.”
Of course, what Blackmore’s lawyer didn’t say is that it is the federal government that makes the criminal laws, not provincial attorneys-general.
Blackmore more or less conceded that under cross-examination only a day earlier.
During a testy exchange with special prosecutor Peter Wilson, Blackmore acknowledged that it was fair to say that he knew that plural marriages are “not considered legal, lawful and proper in the eyes of the government of Canada.”
In his sworn affidavit, Blackmore said that he was “relieved to learn (in 1992) that the attorney-general had concluded that my religious rights were protected . ... I relied on that in proceeding with the (marriage) blessings performed after that.”
Still, Blackmore sought legal advice and was told that “in order to ensure no legal issue would arise, we should ensure that prior to any ceremony it was to be announced that it was not legally binding on anyone.”
The only religious freedom argument that Suffredine made was in support of his unfairness contention.
He said the only distinction between Blackmore and other Canadian men or women who have multiple sexual relationships or conjugal partners is that Blackmore’s relationships received a religious blessing.
Both he and Blackmore argue that to criminalize those relationships because of a religious blessing is not only unfair, it’s discriminatory.
The hearing and polygamy trial itself has been a bit shambolic. There is good reason for that since it’s the first time the law has ever been prosecuted. But it goes beyond that. Oler is a co-defendant, but he put up no defence and had no lawyer. He is attending the constitutional hearing because its outcome could affect his own conviction. But he is not actively participating.
There is a court-appointed amicus (or friend to the court) who provides a counter-weight to the prosecution.
And then there is the scattershot nature of Blackmore’s defence. The constitutional application was made mid-trial. The judge refused to hear it then, which resulted in this hearing.
The hearing comes four months after her guilty verdicts and was delayed partly because Suffredine missed the judge’s deadlines for filing the application and affidavits.
On Wednesday, the judge had to repeatedly ask Suffredine for clarifications of his arguments, wanting to know exactly what constitutional sections he was relying on and what authorities.
And at one point, the whole thing seemed destined to go off the rails when Suffredine said he wanted to call one of Blackmore’s previous lawyers as a witness. He eventually withdrew that request after the prosecutor pointed out that Blackmore would have to waive solicitor-client privilege and, in order to cross-examine the lawyer, the prosecutor would want to see the lawyer’s complete file on the case.
The hearing continues Thursday with the amicus, Joe Doyle, making his submissions.