A lawyer for a Mormon fundamentalist leader in Bountiful will be launching a charter challenge to a polygamy charge based on the Crown’s reliance on evidence that was collected before a constitutional reference test in 2011.
Blair Suffredine, the defence counsel for Winston Blackmore, said he intends to file an application for abuse of process next week seeking a stay of the Bountiful leader’s polygamy charge based on a charter argument.
The foundation of his argument dates back to the late 2000s and the allegations of ‘special prosecutor-shopping’ that got an earlier polygamy charge against Blackmore thrown out of court.
In 2007, Richard Peck was appointed as a special prosecutor to examine evidence of polygamy that resulted from a police investigation int Winston Blackmore and James Oler in Bountiful.
Peck declined to pursue charges based on the constitutional argument of religious freedom but recommended that a constitutional reference case be brought forward to test the criminality of polygamy.
Another special prosecutor also declined to approve charges, until former Attorney General Wally Oppal appointed Terry Robertson, who decided to move forward in prosecuting polygamy.
Though the charge was approved, it was eventually thrown out, as well as Robertson’s appointment as a special prosecutor, on the grounds that Oppal had unfairly searched for a prosecutor willing to pursue charges when others had declined.
That led to a constitutional reference case with a ruling in 2011 that upheld the criminality of polygamy and the constitutionality of including polygamy within the Canadian Criminal Code.
Once that ruling came down, it essentially cleared the way for a criminal prosecution on polgyamy.
However, Suffredine’s Charter argument will rest on the fact that all evidence being presented at the current polygamy trial was collected before the constitutional reference case and therefore cannot be used as evidence.
“What I’m saying is that this prosecution is all based on the old evidence that pre-dated the reference,” said Suffredine, outside the court, “and no new evidence of anything else since the reference, and therefore, it is an unfair trial to now come back and prosecute them when nobody knew at the time whether they were committing any crime.”
At the start of the trial, Suffredine told the court he didn’t intent to file a charter challenge, but changed his mind as the proceedings went on and saw the scope of the Crown’s evidence.
Suffredine’s intention to file notice follows a voire dire — a process to determine the admissibility of evidence — for evidence relating to Oler.
Justice Sheri Donegan will issue her voire dire ruling on Monday, before Crown counsel resumes or rests it’s case.
“So then at that point, I’m going to argue the Charter that this is an abuse of process,” Suffredine said, “because we now know what all the evidence is and we know it’s entirely based on events that preceded the reference.”
The trial is currently in it’s eighth day, and has heard testimony from mainstream Mormon experts, law enforcement who worked on the investigation and Jane Blackmore, a former wife of Winston Blackmore who left the community in 2003.