For the last few weeks, Cranbrook’s Supreme Court has been in session with the trial of three members of the polygamous community of Bountiful.
The three, Brandon Blackmore, Emily Ruth Gail Blackmore and James Oler were charged with alleged child trafficking offences that originated in 2004 by shipping their own daughters across the border to be married to men in the U.S.
Justice Paul Pearlman has reserved his decision for next February, where he is expected to deliver a verdict.
While the Crown lawyers have been prosecuting the child trafficking offences, it felt like the opening salvo for another upcoming trial for two notorious members of the same community.
Oler, along with Bountiful leader Winston Blackmore, were also charged with polygamy when Special Prosecutor Peter Wilson approved the three ‘unlawful removal of a child from Canada…’ charges against the trio two years ago.
The polygamy charges stuck this time, after Winston Blackmore successfully got a previous charge dropped over accusations that the provincial government engaged in ‘prosecutor-shopping’ to find someone willing to take the case to court.
When the new charges were sworn in on August 13, 2014, Wilson pointed to charge assessments from earlier RCMP reports as well as new evidence obtained by U.S. law enforcement as primary reasons for approval, according to a media release.
According to information sworn by Terry Jacklin, Blackmore is accused of allegedly practicing polygamy with 24 women, while Oler is accused of allegedly practicing polygamy with four.
During the child trafficking trial, former members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) took the witness stand to testify about their experiences growing up in the community and the expected role of women.
Women are taught to be obedient to the priesthood-head, the father or husband, and bear children to expand the priesthood-head’s kingdom.
While Wilson solicited the testimony to build his case that the Brandon James Blackmore, Emily Blackmore and Oler daughters would be unable to refuse the marriages, it also provided a glimpse of what to expect when the polygamy charges go to trial.
During the child trafficking trial, witnesses testified that FLDS doctrine teaches that a man, a priesthood-head, must have three wives in order to enter into the highest glory of Heaven. Women are taught to accept polygamy as a principle sanctioned by the Lord and that refusing a marriage, determined by revelations from the FLDS prophet, could lead to excommunication or eternal damnation.
That, in part, explains the willingness of FLDS women to enter into plural marriages, but expect Winston Blackmore and Oler to make a constitutional argument as well.
It doesn’t take a legal expert to predict that both Blackmore and Oler will lean on the Canadian Charter of Rights and Freedoms for their defence — if they mount one — during the polygamy trial.
From the Charter itself — “Everyone has the following fundamental freedoms: Freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly and freedom of association.”
However, a constitutional reference case brought forward by the provincial government in 2009 reaffirmed that polygamy, as defined in Section 293 of the Canadian Criminal Code, is still a criminal offence.
“[Section] 293 is consistent with the Canadian Charter of Rights and Freedoms except to the extent that it includes within its terms, children between the ages of 12 and 17 who marry into polygamy or a conjugal union with more than one person at the same time,” wrote Justice Robert Bauman, in his decision two years later.
He clarified in his ruling that he had concerns with young girls between 12-17 years old who could potentially be prosecuted for entering a polygamous union, suggesting it was up to Parliament to create a legislative solution.
Specifically, in the analysis by Justice Bauman, the argument came down to whether polygamy harms women, children, society and the institution of monogamous marriage.
The Canadian Attorney General made the argument that there are harms associated with polygamy, while the challengers countered that Section 293 is a wholly unacceptable intrusion by the State that interferes with the freedom of religion.
The decision, which came down in 2011, has not been appealed, or put to the test in any Canadian court jurisdiction.
Until the New Year, that is, when Winston Blackmore and Oler are expected to stand trial in Cranbrook Supreme Court, beginning on April 10.