The leader of a fundamentalist religious community in British Columbia has lost his attempt in the province's appeal court to have a polygamy charge against him thrown out.
Winston Blackmore's lawyers wanted the appointment of a third special prosecutor in the case quashed, arguing that the first special prosecutor's decision to not lay charges should stand.
But lawyers for the government argued that reopening the case was justified, saying police collected new evidence and the B.C. Supreme Court confirmed in a constitutional case that polygamy is against the law.
Blackmore, one of the leaders of the fundamentalist religious sect in Bountiful, is accused of one count of polygamy for allegedly having two dozen wives.
In a unanimous decision released Wednesday from the B.C. Appeal Court, Justice David Frankel wrote there was a change in circumstances, leaving the assistant deputy attorney general to decide that it is in the public interest to appoint another prosecutor.
The legal history of the case goes back to the 1990s, when RCMP began investigating allegations that people in the community were practising polygamy, but the Crown would approve charges after getting advice that the polygamy section of the Criminal Code conflicts with the charter.
In 2007, special prosecutor Richard Peck was appointed by the government to conduct a charge assessment review. He too concluded that no criminal charges should be laid, but recommended that a constitutional reference case be held to decide if the charge didn't conflict with the charter.
A second special prosecutor was appointed a year later and polygamy charges were approved. They were thrown out in 2009, when the judge ruled the then-attorney general of B.C. had gone "special prosecutor shopping" until finding one who wanted to lay charges.
That set off the constitutional reference case and in 2011 a judge affirmed the law against polygamy was constitutionally valid.
Peter Wilson, the third special prosecutor, was hired and in August 2014 Blackmore and a second leader in the Bountiful community were charged with polygamy.
While Blackmore's lawyer said nothing had changed between the appointment of the first and last special prosecutor, Frankel disagreed in the ruling.
"By 2012, not only had the factual matrix changed but more importantly, there had been a material change in the legal matrix."
Frankel said once those changes were made it was open to the assistant deputy to form the view that it was in the public interest to determine if a prosecution should go forward.
Another Bountiful community leader, James Oler, who didn't take part in the appeal, was charged along with Blackmore with polygamy over allegations he has four wives.
Oler is also charged along with Emily Crossfield and Brandon Blackmore with unlawfully removing a child from Canada for sexual purposes.
No date has been set for their trial, which is expected to be held in Cranbrook in northeast B.C., not far from Bountiful.