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

Candice Woloshyn prepares her flower beds for the next season at her ‘Dirty Girl Flowers’ farm in Merville. Despite the pandemic, Woloshyn was able to sustain her homegrown business as community members opted for regular deliveries of fresh cut flowers. Photo by Binny Paul/ Campbell River Mirror.
Vancouver Island flower farmers were blooming as the pandemic wilted everything else

Floriculturists saw increased subscriptions as fresh flowers became a ‘sight for sore eyes’ during isolation

Struggling to afford rent, Sylvia Bailey is hoping to trade her love of cooking for some more affordable accommodation. (Photo courtesy of Sylvia Bailey)
Retired Victoria woman looking to cook, clean or garden in exchange for rent

Sylvia Bailey is hoping to use her love for cooking to help afford rent

View Royal Coun. John Rogers stands next to an unearthed home heating oil tank. As a way to prevent environmental disasters, he is lobbying for a provincial registration system and mandatory inspection for all above-ground tanks, as well as a requirement to remove any underground tanks not used for a prescribed period of time. (Don Descoteau/News Staff)
Efforts to regulate Greater Victoria home heating oil tanks continues

View Royal councillor part of movement to identify old tanks, prevent catastrophic leaks

International Bat Week (Oct. 24-31) is a time for people to learn more about the nocturnal creatures and how to protect them. (Photo by Cory Olson)
Holy Halloween, it’s Bat Week!

Bats have been getting a bad rap — B.C. Bat Program looks to change that

Wind and waves were part of the reason why the Sail Canada High Performance Team selected HMCS Quadra as the winter training base for Tokyo 2021. Photo by Ken Dool
National sailing team prepares for Olympics at Vancouver Island location

Sail Canada picks military facility at 19 Wing Comox for wind, waves and accommodations

Carolyn and Steve Touhey came across a pod of humpback whales while on their boat Sunday, Oct. 25. Photo supplied
VIDEO: Boaters encounter pod of humpbacks in Georgia Strait

Pod spotted between Comox and Texada Island

Prime Minister Justin Trudeau provides an update on the COVID pandemic during a press conference in Ottawa on Tuesday, Oct. 27, 2020. THE CANADIAN PRESS/Sean Kilpatrick
Trudeau says pandemic ‘really sucks,’ and that Christmas gatherings are up in the air

The prime minister encouraged residents to continue to follow the advice of local health authorities

The Williams Lake Indian Band is stipulating no-go zones for mushroom picking in areas burned by last summer’s wildfires. 100 Mile Free Press photo
Who controls mushroom harvesting on Indigenous lands?

‘We don’t necessarily know where the mushrooms grow, how old the stands need to be, those types of things.’

Canadian and American flags fly near the Ambassador Bridge at the Canada/USA border crossing in Windsor, Ont. on Saturday, March 21, 2020. THE CANADIAN PRESS/Rob Gurdebeke
U.S. election results one factor that could impact immigration to Canada next year

The survey polled 1,523 Canadians between Oct. 23 and Oct. 25

The voting station mimicked a real voting station in Nicole Choi’s classroom at Chilliwack middle school on Oct. 22, 2020, where students had to show their ID (student cards), be checked off a list, and mark a secret ballot behind a screen. (Jessica Peters/ Chilliwack Progress)
B.C. students choose NDP majority in mock election

More than 90,000 youth took part in school-based election process

Crew transport bus at the Trans Mountain pipeline project work site in Burnaby, March 2020. (Trans Mountain)
Check your workplace COVID-19 safety plans, Dr. Henry urges

Masks in public spaces, distance in lunchrooms for winter

Kelowna City Hall has been vandalized overnight. (Michael Rodriguez - Capital News)
Kelowna City Hall hit by anti-pandemic vandalism

Graffiti condemning the virus appears overnight on City Hall

FILE – A woman smokes a marijuana joint at a “Wake and Bake” legalized marijuana event in Toronto on October 17, 2018. THE CANADIAN PRESS/Christopher Katsarov
Home nurse visits could play big role in reducing cannabis use, smoking in young mothers

The program, dubbed the BC Healthy Connections Project, involves public health nursing home visits

Emergency crews respond to an apartment fire on Tuesday, Oct. 20. (PHOTO COURTESY JERRY FEVENS)
Port Alberni RCMP investigate possible arson

Fire was contained but three people displaced in aftermath

Most Read