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.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Gurinder Mann. (Submitted photo)
Surrey man receives prestigious restorative justice award

East Newton resident Gurinder Mann one of five to receive a Community Safety and Crime Prevention Award

TEASE PHOTO: Teens at the Bumpers dance club in Whalley in the 1980s, in a photo posted to the "Bumpers / The Zone OFFICIAL Party Page" on Facebook.com.
SURREY NOW & THEN: Bumpers and other teen dance clubs were big in the 1980s

A weekly look back at Surrey-area landmark sites and events

An example of a Surrey Police cruiser, showcased at Mayor Doug McCallum’s State of the City Address at Civic Hotel in May of 2019. (File photo: Amy Reid)
Surrey Police Service looking to hire in-house lawyer

Solicitor to work within Office of the Chief Constable, serve on internal and external committees to ‘represent the SPS’s interests’

Surrey provincial court. (File photo: Tom Zytaruk)
New COVID-19 protocols set for provincial courthouses

The new rules were issued on Jan. 21, and took effect immediately

Tyler Tardi will serve as a fifth on Team Laycock at the 2021 Tim Hortons Brier. (Black Press Media file photo)
Tyler Tardi to serve as alternate for B.C. team at Brier

Langley/Cloverdale curler to serve as ‘fifth’ on Team Laycock at Calgary-hosted championships

Toronto Public Health nurse Lalaine Agarin sets up for mass vaccination clinic in Toronto, Jan. 17, 2021. B.C. is set to to begin its large-scale immunization program for the general public starting in April. THE CANADIAN PRESS/Frank Gunn
B.C.’s COVID-19 mass vaccinations expected to start in April

Clinics to immunize four million people by September

Chief Public Health Officer Theresa Tam speaks during a daily briefing in Ottawa. (THE CANADIAN PRESS/Adrian Wyld)
31 cases of COVID-19 variants detected in Canada: Health officials

Dr. Theresa Tam made announces 13 more variant COVID-19 cases in Canada

Daily COVID-19 cases reported to each B.C. health region, to Jan. 20, 2021. Island Health in blue, Northern Health green, Interior Health orange, Vancouver Coastal in red and Fraser Health in purple. (B.C. Centre for Disease Control)
B.C.’s COVID-19 infection rate stays stable with 508 cases Friday

Vaccine delivered to more than 110,000 high-risk people

The District of Saanich’s communications team decided to take part in a viral trend on Thursday and photoshopped U.S. Senator Bernie Sanders into a staff meeting photo. (District of Saanich/Twitter)
Bernie Sanders makes guest appearance municipal staff meeting in B.C.

Vancouver Island firefighters jump on viral trend of photoshopped U.S. senator

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

School District 57 headquarters in Prince George. (Mark Nielsen, Local Journalism Initiative Reporter)
Prince George school district settles with sexual abuse victim

Terms were part of an out-of-court settlement reached with Michael Bruneau, nearly four years after he filed a lawsuit

Police in Vancouver looking for male suspect who allegedly spat and attacked a store manager for not wearing a mask, at 7-Eleven near Alma Street and West 10th Avenue just before noon on Dec. 17, 2020. (Vancouver police handout)
VIDEO: Man spits on 7-Eleven manager over mask rule, sparking Vancouver police probe

‘Unfortunately, the store manager sustained a cut to his head during the assault’

The Vancouver-based SAR team successfully rescued two lost snowshoers off of the west side of Tim Jones Peak in the early morning of Monday, Jan. 19. (North Shore Rescue photo)
B.C.’s busiest SAR team raises alarm after 2021 begins with fatality, multiple rescues

‘People beyond ski resort areas of Seymour, Grouse, and Cypress go without cell reception,’ SAR warns

Competitors make their way through the course at the 2019 Canadian Cross Country Championships, which was hosted by Abbotsford in 2019. (File photo)
Abbotsford to host 2023 Canadian Cross Country Championships

Clearbrook Park last hosted the event in 2019, Ottawa hosting 2021 and 2022 races

Most Read