The BC Court of Appeal has given Crown a chance to try James Oler again in his child bride case while denying Emily Blackmore’s appeal of her guilty verdict.
In a decision handed down Tuesday morning, the three-judge panel said the trial judge who acquitted Oler in 2017 erred in his interpretation of the law.
Oler and Blackmore are both part of a polygamous sect in Bountiful in southeastern B.C.
Oler was charged under a subsection of the Criminal Code that forbids removing a child from Canada for the purpose of sexual interference or sexual touching.
In the original trial, the judge found there was no record of Oler being in Canada at the time he decided or acted to bring his underage daughter to Nevada to marry her to a Fundamentalist Church of Jesus Christ of Latter-Day Saints member in 2004.
The judge found that reason enough to not convict Oler in the 2017 trial.
“I conclude the acquittal turned entirely on the judge’s view of the need for proof of James Oler’s physical presence in Canada,” wrote Justice Mary Saunders.
Oler’s daughter was 15 when she was married to “James Leroy Johnson,” with Oler standing as a witness.
At the appeal hearing in June, special prosecutor Peter Wilson had argued it did not matter if Oler was in Canada at the time when he initiated taking his daughter to the U.S.
Although Saunders accepted that, she found it was necessary for Crown to prove that Oler’s daughter had been in Canada at the time.
“Because the judge did not turn his mind to that issue, it is not open to us to substitute a guilty verdict as sought by the Crown,” she said.
Also on Tuesday, the panel denied Emily Blackmore’s appeal of her conviction on the same charge of removing her daughter from Canada for a sexual purpose.
During her appeal hearing in June, lawyer Greg DelBigio argued the trial judge had made a “leap of faith” in assuming Blackmore both knew and helped her husband take their underage daughter over the border to marry her off.
Blackmore’s daughter was 13 when she was married to FLDS leader Warren Jeffs in 2004, shortly after being taken to the U.S. Blackmore stood as one of the witnesses to the wedding.
DelBigio had argued her mere presence in the vehicle that transported her daughter, herself and her husband, James Blackmore, was not enough to prove guilt.
However, in her written reasons, Saunders said the importance of marriage and procreation in the Bountiful culture, and Blackmore’s role and responsibility as a mother, made it impossible to assume she was an unwitting participant.
“I observe there is no evidence that young unmarried girls were called to Warren Jeffs’ presence absent a conjugal reason,” wrote Saunders.
“It is plain that the evidence offers no other reasonable inference than Blackmore’s presence in the car would be both encouraging to her husband… and reassuring to her daughter.”
Blackmore is currently serving a seven-month sentence for the offence.