Vancouver — Globe and Mail Update Last updated on Thursday, Jul. 09, 2009 01:55AM EDT
A B.C. Supreme Court judge considering whether to quash polygamy charges against Winston Blackmore has asked the religious leader’s lawyer to submit a new petition to the court in September.
Madam Justice Sunni Stromberg-Stein indicated in a memo to legal counsel that she believes she does not have jurisdiction to rule on whether to halt charges that are now in Provincial Court and not in Supreme Court. 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.
However, the judge suggests that Mr. Blackmore can get around the problem by asking for a judicial review of former attorney-general Wally Oppal’s decision to have a prosecutor appointed to review the case after an earlier prosecutor had decided that charges were not warranted.
Mr. Blackmore’s lawyer Bruce Elwood said the judge indicated she would be available to hear the new submissions in the first week of September.
“Hopefully, her concern about jurisdiction will be resolved to her satisfaction so she can rule on the matter,” Mr. Elwood said in an interview.
Special Prosecutor Terry Robertson said the judge is not following normal procedures.
“I admit to not clearly understanding what she is doing,” Mr. Robertson said.
Usually, a judge would dismiss an application if it was procedurally flawed and another application could be made, he said.
“It’s almost as if she wants to remain [involved in the case],” Mr. Robertson said, adding that she may have proposed changes to Mr. Blackmore’s lawyer because she has already spent four days in court hearing the case and wants to conclude it.
The bid to have the charges quashed is the first Charter of Rights and Freedoms case on polygamy in Canada. Mr. Blackmore, a religious leader in the Fundamentalist Church of Jesus Christ of Latter Day Saints, has been charged with being in a polygamous relationship with 19 women. Jim Oler, who heads another faction in the same religious group, has been charged with polygamy over his marriage to three women.
Last week, Mr. Blackmore’s lawyer, Mr. Elwood, told the court that Mr. Oppal overstepped his authority by “shopping” for a prosecutor who was willing to proceed with the charge. Mr. Robertson is the third prosecutor in recent years to consider criminal charges against Mr. Blackmore; the previous prosecutors decided not to charge him. The decision of the first special prosecutor should have been final, Mr. Elwood said. Mr. Blackmore’s Charter right to fundamental justice was violated, he said.
Judge Stromberg-Stein at that time questioned whether she could hear Mr. Elwood’s application. “I don’t see where I have the jurisdiction,” she told the court.
She subsequently decided that Mr. Blackmore’s lawyer could fix the problem by rewording his submissions.
However, this week she notified the lawyers that she decided Mr. Blackmore’s lawyer should have made submissions under a different piece of legislation. Mr. Blackmore should have asked for a judicial review of the minister’s decision, rather than a Charter review of whether the criminal charge was unfair and a violation of Mr. Blackmore Charter right to fundamental justice, she said.
Mr. Robertson had vigorously opposed changing the wording when it was proposed last week in court. Yesterday, he noted that the judge had also decided the application to quash the charges was procedurally flawed, but she did not take the next step and dismiss it.
He said he has not yet decided how he will respond to the new development. He said he would consider “seeking direction” from Judge Stromberg-Stein “on where we go from here and what we do.”