The interpretation of records from a fundamentalist Mormon leader can cast reasonable doubt on the intent to foresee the immediate marriage of a 13-year-old girl, argued a defence lawyer in the trial of three members of a polygamous community in B.C.
Brandon Blackmore, along with Gail (Emily Ruth) Blackmore and James Oler, are charged with removal of a child from Canada, with a criminal code subsection that their removal would facilitate sexual touching or sexual interference.
John Gustafson, who represents Brandon James Blackmore, said a marriage of Blackmore's daughter to Warren Jeffs, the leader and prophet of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), was never discussed in a phone call on Feb. 26, 2004.
"It would not be a natural assumption that marriage to a 14-year-old girl would happen right away," said Gustafson, pointing to a FLDS priesthood record that described the phone call between Jeffs and Brandon Blackmore.
In that conversation, Jeffs told Blackmore that his daughter 'belonged to me' and that further discussion would occur when she, along with Brandon Blackmore, arrived in Short Creek, Utah, a few days later.
Border records from U.S. Customs show that Brandon Blackmore crossed into the U.S. at the Porthill/Rykerts port south of Creston a day after the phone call, however, there is no record of his 13-year-old daughter being with him at the time.
FLDS marriage records indicate Blackmore's daughter, who can't be named due to a publication ban, and Jeffs were married on March 1, 2004.
Gustafson argued further records from Jeffs describe a meeting between the two that involved Blackmore receiving some training from the FLDS leader, where it is possible that he consented to the marriage.
Regardless of consent, Gustafson used the meeting to argue that the intent of the offence constituting sexual touching or interference, as a result of the marriage, was formed after the act of removing the child from Canada, and therefore shouldn't be prosecuted in a Canadian court.
"You're saying there's no extra-territorial reach at all?" asked Justice Paul Pearlman.
"Absolutely," said Gustafson.
Gustafson further suggested that by travelling across the border without his daughter, Brandon James Blackmore never formed the intent — while still in Canada — for the marriage to occur immediately following his arrival in Short Creek.
"In these circumstances, it would be an offence committed in the United States," Gustafson said.
Her absence with him when crossing the border also serves as evidence that Brandon James Blackmore was defying or partially defying Jeffs' order.
The trial heard testimony that FLDS marriages are determined by the prophet, who decides which man and women will marry based on revelations from the Lord.
Brandon James Blackmore's son, Brandon Seth Blackmore, testified he was called down to Short Creek after receiving a phone call from Jeffs in Feb. 2004. He found out he was to be married on the same day as the FLDS leader, and only learned the identity of his bride a few minutes before the ceremony.
That secretive behaviour by Jeffs was a pattern, said Gustafson.
Jeffs knew the marriage to Brandon Blackmore's daughter would get the attention of the authorities.
"This event will hasten the persecutions against me and this people," writes Jeffs in one of his priesthood records, "as the apostates in Canada will inform the authorities that this is not in her father's home, assuming that she is with me."
Joe Doyle, who is serving as amicus — a friend of the court — for James Oler and Emily Blackmore, will present his closing submissions on Wednesday morning.