Winston Blackmore polygamy charge upheld by B.C. Supreme Court

The leader of a British Columbia polygamous sect has lost his attempt in the province's Supreme Court to have the polygamy charge against him quashed, his lawyer has confirmed.

Winston Blackmore asked the court earlier this month to dismiss the 2014 criminal charge against him, arguing it must be thrown out on a legal technicality.

His lawyer Joe Arvay argued that the provincial government doesn't have the right to criminally charge his client — or any resident of the Bountiful commune — for historical acts of polygamy, because he wasn't given "fair notice." 

The cutoff point, said Arvay, should be a 2011 decision by the B.C. Supreme Court that Canada's polygamy laws did not violate the Charter of Rights and Freedoms. That decision provided constitutional clarity to Canadians involved in the controversial practice.

But Associate Chief Justice Austin Cullen rejected Arvay's argument, saying the 2011 ruling did not create any obstacles to prosecution.

Arvay had also argued that Blackmore's polygamy charge should be quashed because the government acted improperly by appointing successive prosecutors until it got the recommendation it wanted.

The justice also rejected that argument, ruling that special prosecutor Peter Wilson was not appointed with the same mandate in 2012 as the previous special prosecutor Richard Peck, and that appointment did not conflict with any decisions reached by Peck.

Long legal battle

In 1990, Crown counsel in B.C. first decided against pursuing polygamy charges against members of the religious sect, which had links to the Fundamentalist Church of Jesus Christ of Latter Day Saints in the Utah, saying the polygamy ban might be struck down by the courts as "an unjustifiable infringement on religious freedom."

Then in 2006 the RCMP recommended criminal charges, following an investigation in allegations that men had been marrying several women and teenagers.

It was Peck who decided in 2007 not to lay criminal charges against Blackmore, but to refer the greater question of the constitutionality of Canada's polygamy laws to the Court of Appeal instead, in order to clear up the legal controversy first.

But, seeking a more aggressive approach, B.C.'s then-attorney general Wally Oppal appointed Leonard Doust to review that decision in 2008.

When Doust supported Peck's decision, Oppal then appointed lawyer Terrence Robertson in 2008 as special prosecutor to conduct a charge assessment.

Robertson approved charges against Blackmore and rival leader James Oler in 2009. Blackmore and Oler became leaders of separate factions in the community when the religious community split more than a decade before.

But those charges were then dismissed by a judge who ruled the A.G. had appointed successive prosecutors "simply to get a desired result."

The B.C. government then took the reference case to the Supreme Court of B.C., which upheld the constitutionality of Canada's polygamy laws in 2011.

In 2012 the government then appointed Peter Wilson as special prosecutor to relaunch the criminal investigation of Blackmore and Oler, which eventually led to charges against four people in 2014.

Blackmore was accused of marrying 24 women, while James Oler was accused of marrying four women. Two other people, Blackmore's older brother Brandon James Blackmore and Brandon's wife Emily Ruth Crossfield, were charged with polygamy and unlawfully removing a child from Canada for sexual purposes.