A judge will deliver a ruling on the constitutional challenge of a fundamentalist polygamy leader on Friday in Cranbrook Supreme Court.
Winston Blackmore was found guilty of practicing polygamy with over 24 women by Justice Sheri Donegan, who also found co-accused James Marion Oler guilty of the same offence with five women.
However, at the conclusion of the Crown’s case during the trial, Blackmore’s lawyer indicated his intent to file a constitutional challenge to seek charter relief.
He is seeking a stay of proceedings or an exemption from punishment.
Blackmore, a fundamentalist Mormon leader from Bountiful — a small community south of Creston in the southern corner of BC — launched his constitutional arguments last fall, arguing that his prosecution has been an abuse of process since he was first investigated by law enforcement in the early 1990s.
It’s taken 27 years for the issue to go through the courts because government officials were convinced a prosecution of polygamy would fail based on a charter defence.
Crown officials believed that proceedings against Blackmore under Section 293 of the Canadian Criminal Code, the polygamy offence, would ultimately fail against a constitutional challenge.
That issue was settled in 2011 following a ruling from a constitutional reference case addressing Section 293, which determined that the harm associated with polygamy outweighs the individual right to religious freedom.
With that ruling in hand, the Ministry of Justice appointed Peter Wilson, a special prosecutor who approved the polygamy charges in 2014 and led the case for the Crown.
The crux of Blackmore’s charter challenge relies on the fact that since Crown lawyers never charged him with polygamy after an initial investigation in the early 1990s, he was essentially allowed to practice polygamy without fear of prosecution.
Blackmore’s lawyer, Blair Suffredine, argued that a public statement from the Criminal Justice Branch detailing Crown’s fears that prosecuting Blackmore under Section 293 would fail serves as the basis for the challenge.
If prosecutors weren’t willing to charge Blackmore with polygamy after the initial investigation, then it essentially served as legal validation to pursue polygamous marriages, argued Suffredine.
During Blackmore’s challenge, Wilson argued on behalf of the Crown that Blackmore should have sought legal validation from the courts, instead of relying on public statements by government officials.