Judge rejects constitutional challenge after two men found guilty of polygamy

CRANBROOK, B.C. — A judge has rejected a challenge of Canada’s polygamy laws that was launched after two men were found guilty of the offence in British Columbia.

Winston Blackmore and James Oler were found guilty in B.C. Supreme Court last July of having multiple wives, but a lawyer for Blackmore argued the law infringes on the charter right to freedom of religion and expression.

Justice Sheri Ann Donegan dismissed all arguments Friday that the charges should be stayed, including a claim that the prosecution was an abuse of process.

Both men have been leaders in the small community of Bountiful in southeastern B.C., where court heard residents are members of the Fundamentalist Church of Jesus Christ of Latter-day Saints, which condones plural marriage.

Blackmore, 62, was found guilty of marrying two dozen women, while Oler, 53, was found to have five wives. Both men face a maximum of five years in prison.

In December, Blackmore argued that he believed he was allowed to practice polygamy because he wasn’t charged when police investigated allegations about his multiple wives in the 1990s.

Outside court on Friday, Blackmore said he doesn’t encourage anyone to practice polygamy, but he also doesn’t discourage anyone who has a religious commitment.

“I know one thing, and that’s that our faith is as good as anybody’s. But at the end of the day, we need to be people who try to respect the laws of our country,” he said.

“I didn’t know it was illegal. We got a definite letter from the attorney general at the time, which said that our conduct was protected under the charter — the same charter, by the way, that affects all the same-sex couples … the same charter that affects every other person’s right to associate with whoever they choose. All I’m saying is that I should equally enjoy that same right.”

His lawyer, Blaire Suffredine, argued the unions were never legal marriages, but common-law relationships sanctioned by Blackmore’s church, which carry no legal weight.

Special prosecutor Peter Wilson argued Blackmore was always at risk of prosecution, even though Canada’s polygamy laws have in the past been constitutionally vague.

In 1991, the RCMP completed a 13-month investigation into Bountiful by recommending polygamy charges against Blackmore and another man, but B.C.’s attorney general decided not to lay charges because of uncertainty over whether the law was unconstitutional on the grounds of religious freedom.

The B.C. Supreme Court upheld the polygamy laws in the 2011 reference case, ruling that a section of the Criminal Code banning plural marriages is constitutional. The court’s chief justice found that the harm against women and children outweighs concerns over protecting religious freedom.

“The release of the polygamy reference was a sea change in the legal landscape,” Wilson said during legal arguments in December. “Nothing could have been more significant to a charging decision, in the circumstances of this case, than that.”

Oler did not have legal representation at the trial, but a lawyer was appointed as a friend of the court to ensure he received a fair trial. Oler left court on Friday without commenting.

Blackmore said after nearly 28 years, the legal battle over polygamy has been a test of the community’s faith.

“But it’s kind of driven us together,” he added.

Blackmore said he will not decide whether to appeal until after he is sentenced. The case returns to court on May 15 for a sentencing hearing.

Dan McLaughlin, a spokesman for the province’s public prosecution service, said he believes there were some historical convictions involving polygamy from the 1890s.

“Those were in entirely different situations and likely would not assist the court in crafting an appropriate sentence in this case,” he added.

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