Vancouver — From Friday’s Globe and Mail Last updated on Friday, Jul. 03, 2009 11:49AM EDT
Winston Blackmore’s efforts to quash a polygamy charge against him are in limbo after a B.C. Supreme Court judge questioned whether she had the authority to halt the prosecution in a lower court.
The criminal charge against Mr. Blackmore is currently a matter in the Provincial Court of B.C. A preliminary hearing on whether the evidence is sufficient to warrant a trial must be held in Provincial Court before his case could be transferred to the Supreme Court for trial.
“I don’t see where I have the jurisdiction,” Madam Justice Sunni Stromberg-Stein of the B.C. Supreme Court said Thursday, referring to the charge in Provincial Court. “Quashing may not be available to me. Convince me otherwise,” she told Mr. Blackmore’s lawyer Bruce Elwood.
Her statements appeared to catch Mr. Elwood by surprise. He declined to respond immediately and resisted a suggestion to offer a response later Thursday afternoon. Judge Stromberg-Stein agreed to hear his reply Friday morning, when he is expected to explain why he moved to quash the charge in the Supreme Court, rather than the lower court.
Earlier this week, the judge had pressed special prosecutor Terry Robertson for answers on whether Wally Oppal, who was attorney-general at the time that Mr. Blackmore was charged with practising polygamy, could appoint a second special prosecutor.
Richard Peck, the first special prosecutor, had decided that a reference to the court on the constitutionality of the law prohibiting polygamy was preferable to a criminal charge against Mr. Blackmore. Mr. Oppal rejected the decision and had another special prosecutor, Mr. Robertson, appointed to review the matter. Mr. Robertson decided to charge Mr. Blackmore.
Mr. Elwood said Mr. Oppal was “special prosecutor shopping.” Mr. Robertson told the court that Mr. Oppal had the discretion to initiate the prosecution and that nothing prohibited the Attorney-General from appointing more than one special prosecutor.
Previous court decisions have indicated that the use of the word “final” in legislation to describe a special prosecutor’s decision does not in fact mean “final” in the dictionary sense, Mr. Robertson said. Using “final” does not preclude further review of a matter, he added.
Mr. Elwood said Mr. Peck’s decision was intended to be the final word, that it was not simply an opinion or a recommendation.
“If I accept that argument, then what?” Judge Stromberg-Stein said. “I’m not the trial court. I have no authority to quash the information,” she said.
The process of charging Mr. Blackmore began in January with the filing of information from police in Provincial Court. A preliminary hearing has been set for four weeks beginning April 19 next year in Provincial Court in Cranbrook, B.C. A date for a trial has not yet been fixed, although the court was told that the lawyers have discussed scheduling a trial in B.C. Supreme Court in September.
Mr. Blackmore, the former bishop of the Fundamentalist Church of Jesus Christ of Latter Day Saints, has been charged with being in a polygamous relationship with 19 women. As of September, 2005, Mr. Blackmore had 25 wives and 101 children, according to an affidavit by an RCMP officer submitted as part of the application to quash the prosecution.
Six of his wives were not listed on the criminal charges against him. Three of the women said they had participated in a religious marriage but were “not like a real wife.” His only legal wife, Jane Blackmore, divorced him. Two of the women left him around 2002, the year he was replaced as bishop of the polygamous religious community outside Creston, B.C.
Jim Oler, who succeeded Mr. Blackmore as head of the polygamous religious community, has also been charged with polygamy. He allegedly has three wives.