Confusion reigned in Cranbrook Supreme Court as an application for a charter argument for abuse of process was argued in the trial of two polygamous leaders connected to a small community near Creston.
A lawyer for Winston Blackmore, a former Fundamentalist Church of Jesus Christ of Latter-Day Saints leader from Bountiful, is seeking a stay of the polygamy charge.
Blair Suffredine, Blackmore’s lawyer, adds that he is arguing that Blackmore’s right to to a fair trial were violated through an abuse of process.
Jim Oler, Blackmore’s co-accused who is self-represented, expressed interest in seeking legal advice to file a similar notice.
Suffredine’s intent to file the notice, which is being presented as a challenge relating to various sections of the Charter of Rights and Freedoms, was filed on Thursday and discussed on Monday.
Suffredine laid out his argument, pointing to conclusions made by Richard Peck, a former special prosecutor who declined to lay polygamy charges in 2007, but asked that a reference case be tried to test the constitutionality of Section 293 that defines polygamy as a criminal act.
That reference case, with a ruling upholding polygamy as a crime, was delivered in 2011.
Suffredine says that the time between polygamy being first investigated in the early 1990s till the reference ruling in 2011, evidence collected during that time period should not be held against Blackmore since it wasn’t legally clear whether Section 293 of the Criminal Code [Polygamy] is unconstitutional.
“What I’m arguing is that after someone has ruled that it is constitutional,” said Suffredine, in an interview outside the courtroom, “it’s not fair to go back to somebody who behaved according to what they were told by the Attorney General and now prosecute them for what they did then.”
Peter Wilson, a special prosecutor appointed to the case in 2012, said the notice of the charter argument should be considered once the trial is finished and a verdict has delivered, since it never came up as an issue beforehand.
“Fundamentally, I don’t understand it,” Wilson said, during the court proceedings.
Suffredine admitted he didn’t file a charter challenge because he wasn’t sure what evidence the crown would bring forward, calling his intent to file a ‘fluid situation.’
“At this point, I don’t have any argument about the section itself, but I may have an argument about it’s application to somebody who’s claiming religious freedom,” Suffredine said.
In addition to the discussion about the charter challenge, Justice Sheri Donegan also delivered a ruling allowing statements Jim Oler made to police regarding his wives to be admitted into evidence.
Investigators met with Oler in October 2005 to gain his permission to interview his wives during an investigation into alleged sexual exploitation.
Oler admitted to having three wives and said he would set up a time for police to conduct interviews. Since it was a general inquiry and not a formal police interview, it was not recorded.
Police formally interviewed three of Oler’s wives in January 2006 inside a police vehicle outside his home. The women gave their names and date of births, but refused to answer other questions.
Justice Donegan ruled that Oler’s knew he was under police scrutiny, but that his statements about his wives were made voluntarily outside of the scope of the sexual exploitation investigation.
Given the evidence presented throughout the trial, Crown counsel also applied to amend the indictment to add a fifth woman to Oler’s polygamy charge, based on his statements to police and marriage records.