Constitutional arguments in the case of Winston Blackmore, a polygamous leader near Creston, B.C., are underway in Cranbrook Supreme Court. Trevor Crawley photo

Constitutional arguments in the case of Winston Blackmore, a polygamous leader near Creston, B.C., are underway in Cranbrook Supreme Court. Trevor Crawley photo

B.C. polygamous leader argues charge should be dropped in charter challenge

Winston Blackmore argues some of the evidence shouldn’t be used against him

Fundamentalist Mormon leader Winston Blackmore took to the stand in Cranbrook Supreme Court, testifying that he believed he was entitled to practice polygamy because RCMP never charged him with the offence after an investigation in the early 1990s.

Blackmore, who filed a notice to launch a charter challenge after being found guilty of practicing polygamy in July, is seeking a stay of the proceedings, an exemption from prosecution based on his religious beliefs, and alternatively — if convicted — an absolute discharge.

READ MORE: Winston Blackmore, James Oler found guilty of polygamy in landmark B.C. trial

After he was first detained by RCMP in 1990 who were investigating polygamy allegations, he says he was released pending a decision from the Attorney General, who decided not to purse a prosecution.

“I was relieved to learn that the Attorney General had concluded that my religious rights were protected under the Canadian Charter of Rights and Freedoms,” writes Blackmore in an affidavit filed with his charter notice of application. “I relied on that in proceeding with the blessings (marriages) performed after that.”

In his application, Blackmore argues his charter rights were violated, including right to religious freedom, right to fair trial and the right not to be found guilty on account of any act or omission unless, at the time of the act or omission, in constituted an offence.

In 2011, a constitutional reference case ruled that Section 293 of the Canadian Criminal Code, which defines polygamy, is constitutionally valid. However, Blackmore is arguing that polygamous marriages occurring before the decision should not be prosecuted, as it was not legally and constitutionally clear whether it was a crime.

Special prosecutor Peter Wilson called Blackmore to the stand to cross-examine him on the material in his affidavit as well as testimony given during a trial in an Utah court in a civil trial where he talks about the ages of his wives and the legality of the marriages.

In British Columbia, a person must be 19 years or older to marry, but anyone under that age must have written consent of both parents. Marriages of a person under 16-years-old can occur with both parental consent and a court order.

Wilson and Blackmore went back and forth during testimony as the prosecutor noted that Blackmore had married nine women who were under 19, two of which were 15 at the time of the ceremony. After questioning from Wilson, Blackmore admitted he had parental consent for all the marriages, but not in writing.

Blackmore said he never applied to have the marriages solemnized in court because he didn’t think ‘anyone would have given them the time of day.’

That’s because the marriages were unlawful, Wilson countered.

“Isn’t that why the Mormons fled across the US to Utah?” asked Wilson. “Isn’t that why Mormons left Utah to go to Cardston? And isn’t that why Mormons settled in Bountiful, because you’re being hounded by authorities who said that plural marriage is unlawful?”

Blackmore answered by saying as far as he knew, plural marriage, or polygamy, is legal and and lawful in the sight of God.

“I’m aware that in our country today, any man can associate with however many women he wants,” said Blackmore, “any woman can have as many men in her life as she wants, any man can have as many men in his life as he wants, and they can freely associate in any sort of capacity, sexual or other. I am aware the charter guarantees their right. And all I’m asking, My Lady, is that this charter grants us the same protection as it grants other citizens of Canada.”

However, Wilson suggested that Blackmore knows the marriages aren’t legal, lawful and proper in the eyes of the Government of Canada.

“Fair statement?” asked Wilson.

“Fair statement,“ Blackmore answered.

Much of Blackmore’s arguments on the constitutional issue centre around allegations of ‘special prosecutor shopping’ after the Attorney General and a string of special prosecutors declined to pursue polygamy charges from 1990 up to 2009.

Richard Peck, the first special prosecutor appointed in 2007, declined to approve polygamy charges, concluding that he believed it would fail based on the defence of religious freedom.

A second prosecutor, Leonard Doust came to the same conclusions as Peck and recommended a reference case to test the constitutionality of Section 293.

A third special prosecutor, Terry Robertson was appointed in 2008, who disagreed with his predecessors and approved polygamy charges, however, his appointment was successfully thrown out of court after a challenge from Blackmore.

A reference case was ordered, with a lengthly ruling that upheld the constitutionality of Section 293, that prosecuting polygamy does not violate an individual’s constitutional rights because the harms associated with polygamy outweigh the individual right to freedom.

That paved the way for Wilson’s appointment in 2012, who approved the polygamy charge against Blackmore and James Marion Oler in 2014.

Just Posted

Black Press file photo
RCMP seek suspect in Vancouver Island-wide crime spree

Crimes stretched from Deep Bay to Qualicum, Ladysmith, Chemainus and Youbou

Things are looking up for Vancouver Island as zero COVID-19 cases have been reported for the first time since October. THE CANADIAN PRESS/Darryl Dyck
Island records zero new COVID-19 cases for the first time since October

For the first time since October, the province is reporting zero new… Continue reading

Black Press Media file
Port Hardy RCMP on the hunt for porta-pottie arsonist

The porta-potties were lit on fire early in the morning on June 13

Eke Me-Xi students enjoy a field trip to Malcolm Island. (Submitted photos)
Eke Me-Xi Learning Centre takes field trip to Malcolm Island

Once at Bere Point, students made themselves at home in the day-use area

Mount Waddington Regional Fall Fair logo
Mount Waddington Regional Fall Fair cancelled again due to COVID-19 restrictions

The 2022 fall fair is still scheduled to take place in Port Hardy

A small pod of Pacific white-sided dolphins pass by close to shore in Campbell River June 16, 2021. Still capture from video courtesy of Kimberly Hart
VIDEO: Dolphin sunset captured from Vancouver Island shore

Spectacular setting for view of travelling pod of Pacific white-sided dolphins

Karl and Stephanie Ann Johanson were thrilled to spot a pair of Sandhill Cranes in the Panama Flats this month, an unusual appearance for such birds. (Photo by Stephanie Ann Johanson)
WATCH: Sandhill cranes an unusual, joyful sight in South Island parkland

These birds don’t often touch down on their way between northern B.C. and Mexico

Police are asking for public assistance in locating Anthony Graham who has been charged with the murders of Kamloops brothers Carlo and Erick Fryer. (RCMP photo)
2 charged, suspect at large in killings of B.C. brothers linked to gang activity: RCMP

Kamloops brothers Erick and Carlo Fryer were found deceased in May on a remote Okanagan road

(V.I. Trail/Google Maps)
Now 90% complete, Vancouver Island trail forges new funding parnership

Victoria Foundation takes on Vancouver Island Trail Association; fund valued at $40,000

Albert Health Minister Tyler Shandro and Alberta Premier Jason Kenney unveil an opening sign after speaking about the Open for Summer Plan and next steps in the COVID-19 vaccine rollout, in Edmonton, Friday, June 18, 2021. THE CANADIAN PRESS/Jason Franson
Alberta 1st province in Canada to lift all COVID-19 public health restrictions

70.2% of eligible citizens 12 and older in the province have received a dose of the vaccine

Fraser Health registered nurse Ramn Manan draws a dose of the Pfizer COVID-19 vaccine into a syringe at a walk-up vaccination clinic at Bear Creek Park, in Surrey, B.C., on Monday, May 17, 2021. THE CANADIAN PRESS/Darryl Dyck
‘Honour our fathers’ with COVID-19 vaccine protection, B.C. urges

109 new cases Friday, 75 per cent of 12 and up immunized

Freighters have becomd abundant in the Trincomali Channel on the east side of Thetis Island.
Nanaimo ponders taking on waste from nearby anchored freighters

Vancouver-based Tymac petitioning the Regional District of Nanaimo to accept waste at its landfill

(Paul Henderson/ Chilliwack Progress)
Trutch Avenue in Chilliwack to be renamed to remove racist taint

New name to have Indigenous significance as Chilliwack takes new step toward reconciliation

Most Read