8 Nov 2010

Polygamy charges against 2 Mormon fundamentalist leaders in Bountiful dismissed on statutory technicality

NOTE BY PERRY BULWER - September 24, 2009
While the immediate result of the court decision discussed in the article below is that polygamy charges have been dismissed against the two Mormon fundamentalist leaders in Bountiful, British Columbia, it is not the end of the story. You can read the decision at this link: Click here to read the full court ruling The judge is careful to point out that the dismissal of charges has nothing to do with the merits of the alleged offences or whether further charges could or should be layed. In paragraph 5 she writes:

It is important to appreciate the scope of this proceeding. This judicial review concerns the process by which Mr. Blackmore and Mr. Oler were charged with the offences on the Information that is presently before the Provincial Court. At issue is the interpretation of the Act [Crown Counsel Act] and whether there is the statutory authority to bring the charges against the petitioners. This judicial review has nothing to do with the merits of the alleged offences; or with the merits of charge approval in this case; or whether there was manifest unfairness in the charge approval process or fundamental unfairness in proceeding with a prosecution instead of a reference to the Court of Appeal; or whether the prosecution of Mr. Blackmore and Mr. Oler should be stayed because it is an abuse of process.


The Vancouver Sun - September 24, 2009

Polygamy charges thrown out against B.C. religious leaders

VANCOUVER — Criminal polygamy charges against B.C. religious leaders Winston Blackmore and Jim Oler have been thrown out.

B.C. Supreme Court Judge Sunni Stromberg-Stein made the ruling Wednesday in B.C. Supreme Court, said Neil MacKenzie, a Crown spokesman.

Both Blackmore and Oler filed separate petitions in B.C. Supreme Court seeking to quash the charges against them. Blackmore is the leader of the fundamentalist Mormon commune in Bountiful, B.C.

Blackmore, 52, and Oler, 44, were charged in January with one count each of practising polygamy, charges that were recommended by special prosecutor Terry Robertson — the third outside counsel hired by the attorney-general's ministry to review evidence gathered during a two-year RCMP investigation.

In a decision released Wednesday, Stromberg-Stein ruled B.C.'s attorney-general had no jurisdiction to direct his staff to appoint Robertson as a special prosecutor.

The two previous prosecutors had recommended that the anti-polygamy section of the Criminal Code be referred to the B.C. Court of Appeal to determine whether it breaches the constitutional guarantees of religious freedom.

In September 2006, following an investigation by the RCMP, Crown counsel decided not to lay any charges.

Then-attorney-general Wally Oppal decided a review of the matter was required and special prosecutor Richard Peck was appointed to conduct a charge assessment.

Peck decided not to lay any charges and Oppal appointed Len Doust, another prominent criminal defence lawyer, to review Peck's decision. In April 2008 Doust confirmed Peck's finding and declined to prosecute.

In June 2008, Robertson was then appointed by the ministry and in January he approved the charges against Blackmore and Oler.

Attorney-General Mike de Jong said he was disappointed by the ruling, adding he will now review the full reasons and determine whether or not to appeal.

"It's not the result that obviously we were hoping for or looking for and it's obviously an impediment to advancing this prosecution," he said.

"The first order of business will be to read the decision in it's entirety, which I haven't done yet," he added.

"There's a decision to be made around a possible appeal."

De Jong also defended his predecessor, Oppal, who launched the prosecution.

"The attorney of the day, Mr. Oppal was confronted by an important and difficult decision," he said.

"He made a decision in the best way he knew and I know with the best of intentions," he added.

"I supported that decision."

Premier Gordon Campbell added he was "surprised and disappointed" by the ruling.

"I think it's important to solve the issue," he said.

"The question is how do you solve it," he added. "We'll look at the ruling and we'll decide what next steps we'll take."

Click here to read the full court ruling

This article was found at:



The Vancouver Sun - September 24, 2009

Analysis: Polygamy case in limbo after political interference

by Daphne Bramham

A landmark case intended to determine the constitutionality of Canada's anti-polygamy law and the limits of religious freedom is on hold -- at least for now -- with charges against two men stayed because of a fundamental principle.

That principle is that the justice system must be independent and free from political interference. Without that, there is no rule of law.

A B.C. Supreme Court justice says former B.C. attorney-general Wally Oppal breached that principle when he rejected the opinion of one special prosecutor, appointed another ad hoc prosecutor and subsequently appointed a second special prosecutor.

Lawyers for defendants Winston Blackmore and James Oler called that "prosecutor-shopping." In a 34-page decision released Wednesday, Justice Sunni Stromberg-Stein agreed.

"The attorney-general created the illusion that the decision to prosecute was that of the [third] special prosecutor when, in reality, the decision reflected the result the attorney-general sought," she wrote.

Further, she said, "The harm in the appointment of successive special prosecutors is that it undermines the administration of justice by leaving the perception, if not the reality, of political interference and of an oppressive or unfair prosecution."

The first two prosecutors recommended that the anti-polygamy law be referred to the B.C. Court of Appeal to determine whether the practice of taking multiple wives is protected by the religious freedom guarantee.

Oppal made no secret of the fact that he preferred a "more aggressive approach." As a former court of appeal justice, he said appellate judges prefer to make decisions based on facts and evidence from real cases. The third opinion Oppal got was a recommendation that one count of polygamy be laid against Blackmore, 53, and one against Oler, 44, leaders in the fundamentalist Mormon community of Bountiful.

The men were arrested and charged in January. Nineteen women were listed on Blackmore's indictment, including nine who were 18 or younger when they became wives. Three were listed on Oler's indictment.

But Stromberg-Stein agreed with the two men's lawyers that the appointment of the second special prosecutor, Terry Robertson, was unlawful and that he had no power to recommend charges.

She also noted, however, that there is no suggestion that Robertson's decision to lay charges was influenced by the attorney-general or that he was not independent of the government.

Lawyers for Blackmore and Oler said their clients were relieved and pleased to have the charges against them quashed. Had the criminal case gone ahead, they would have faced not only the prospect of jail time if convicted, they would have had to bear the legal costs of what is essentially a constitutional challenge.

In Victoria, both Premier Gordon Campbell and Attorney-General Mike de Jong told reporters they were surprised and disappointed by the ruling.

"I think it's important to solve the issue," Campbell said. "The question is, how do you solve it?"

That's the big question that de Jong will have to answer.

What makes this all so difficult for de Jong is that the very reason Oppal sought outside legal counsel is that four senior Crown counsel, including Robert Gillan, the assistant deputy attorney-general, believed that there was no substantial likelihood of conviction because the law is unconstitutional.

Some of them were also involved in a 1992 decision not to pursue charges against Blackmore and against Oler's father, despite the RCMP's recommendation.

It's unlikely their positions have changed. But with this decision, de Jong can't seek any further outside advice.

An appeal is one option. The attorney-general might want to pursue the argument made by the Crown in this case that a special prosecutor's decision is not and should not be a final one and that the attorney-general retains residual responsibility to "intervene in the public interest."

Since Stromberg-Stein ruled that the mandate of the first special prosecutor has not ended, the second option is to take Richard Peck's advice and hire him to file a reference case to the Court of Appeal or directly to the Supreme Court of Canada, if leave is granted.

A very expensive and time-consuming option would be for de Jong to ask RCMP to begin a new investigation. If new evidence were found, Peck's mandate would be deemed to have ended. The final option -- and one that, no doubt, both Blackmore and Oler would prefer -- is to do nothing.

It is, however, an option that the premier seems to have ruled out.

This article was found at:


No comments:

Post a Comment