The B.C. government's fear that a ban on polygamy was unconstitutional led Winston Blackmore to believe there was nothing illegal about having multiple wives and he should not have been prosecuted for it decades later, his lawyer said Tuesday.
A guilty verdict in the case was delivered this week, although it appears far from over. Lawyers will discuss next steps in August, with Mr. Blackmore's counsel ultimately seeking a stay of proceedings or a religious exemption.
Mr. Blackmore and James Oler, who were leaders in the Fundamentalist Church of Jesus Christ of Latter-Day Saints community of Bountiful, in southeastern B.C., were found guilty Monday of practising polygamy. Mr. Blackmore had 25 wives – at least 10 of whom he married when they were 17 or younger, according to the ruling – while Mr. Oler had five.
British Columbia had a lengthy reference case on the constitutionality of polygamy, with a judge upholding the ban in 2011. But that ruling was not appealed by any of the parties involved and whether this most recent case is the one that reaches the Supreme Court of Canada remains to be seen.
The first criminal investigation into polygamy in Bountiful occurred in the early 1990s and was led by RCMP officers in nearby Creston, B.C. The reference-case ruling notes legal opinions obtained by the provincial Crown in the nineties were unanimous the polygamy ban was inconsistent with the Charter's religious-freedom guarantee and charges were not laid.
Blair Suffredine, Mr. Blackmore's lawyer, said his client was told he would not be prosecuted at the time. "Because they told him back in 1992 that they were not going to prosecute him, it led to him continuing in the way he was, in the belief that he was acting legally," he said. "To now prosecute him for the conduct that arises between now and then is unfair."
This week's ruling says Mr. Blackmore first married in 1975 and his sixth marriage began in 1991. The 25th wedding date was in 2001.
Mr. Suffredine said he is not attempting to strike down the law against polygamy. "We're trying to say to the court that he might be entitled to an exemption from prosecution, in part, because he's only practising his religion and he's not causing any harm."
Mr. Oler did not have a lawyer in the case and so an amicus curiae was appointed to assist the court. Joseph Doyle, the amicus, said in an interview he also has questions as to what effect the B.C. government's views ahead of the reference case should have.
Wally Oppal, who was British Columbia's attorney-general from 2005 to 2009 and asked the RCMP to reopen its Bountiful probe, said the B.C. government in the early 1990s had received legal opinions the polygamy section of the Criminal Code would not stand up to a Charter challenge. But he said they did not give Mr. Blackmore "carte blanche."
"They just concluded at that time that they did not think they would get a conviction because of the freedom of religion section in the constitution," he said. Mr. Oppal said this week's ruling was the correct result.
Nicholas Bala, a law professor at Queen's University, said he has a great deal of respect for the B.C. Supreme Court, which heard the reference case, as well as the trial of Mr. Blackmore and Mr. Oler. He found the reference-case ruling "persuasive" but said it would be of use to hear from an appeal court on the issue of polygamy, if not the Supreme Court of Canada.
Stephen Kent, a sociology professor at the University of Alberta who has studied alternative religions, said any effect this week's ruling has on Bountiful will be slow, given the community's long-held belief it has been persecuted.
"Polygamy has been in Creston for 70 or so years," he said. "It is not going to be dismantled overnight, it will probably be a generational process."