Sep 24, 2009 04:30 AM
WESTERN CANADA BUREAU CHIEF
VANCOUVER–Two religious leaders who wanted to challenge Canada’s laws against polygamy, claiming the Charter of Rights and Freedoms protects religious rights, had charges against them quashed yesterday.
A B.C. Supreme Court judge threw out polygamy charges against Winston Blackmore, 53, and James Oler, 45, leaders of rival factions in the polygamous community of Bountiful in B.C.’s interior. The judge ruled the provincial government did not have the authority to pursue charges against the men.
The criminal charges were the first in Canada even though polygamy has been illegal since the 1950s. No one has ever been prosecuted.
Blackmore has proclaimed the Charter protects his religious rights.
"I am thrilled," Blackmore said yesterday in a telephone interview with The Associated Press. "It has been a long and hard year so far. It’s been very stressful for my family and stressful for me."
Blackmore was charged with one count of polygamy with at least 19 women named in an indictment. Oler, who maintains a very low profile and had set up a rival faction of polygamists in the same community, was charged with practising polygamy with two women. If convicted, the two faced a maximum penalty of five years in prison.
The government had previously sought the legal opinions of two special prosecutors, who advised against proceeding with charges.
Blackmore and Oler had petitioned the court to stay the charges, arguing the B.C. attorney general had gone "special prosecutor shopping" until he found someone who would go ahead with charges.
B.C. Supreme Court Judge Sunni Stromberg-Stein agreed in a decision released yesterday, saying that appointing a third prosecutor was not within the attorney general’s jurisdiction.
"A reasonable person would conclude this was because the attorney general had finally obtained the decision he wanted all along," the judge wrote.
Joe Arvay, lawyer for Blackmore, said yesterday that by shopping for a prosecutor willing to take on the case, the government acted unlawfully.
"There is the concern that prosecution is driven by politics, not by law," Arvay said.
The polygamous community in Bountiful is believed to number in the thousands. An RCMP investigation from 2004 to 2008 looked into sexual exploitation and polygamy charges but senior Crown counsel found there was not a substantial likelihood of conviction.
The province has had its hands tied with proceeding with charges for fear that if the polygamy law is struck down by a successful challenge under the Charter, it could strike down the law and make polygamy legal in Canada.
Former attorney general Wally Oppal said yesterday in an interview that he does not regret having pursued charges.
Current Attorney General Mike de Jong said the results were not what were hoped for and a decision to appeal has not been made.
Blackmore and Oler are leaders of two separate factions of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway sect of the mainstream Mormon Church, which renounced polygamy more than a century ago.