Canadian polygamists win court challenge

The Salt Lake Tribune//September 23, 2009

A judge in British Columbia has quashed polygamy charges brought against two Fundamentalist Mormons, ruling the Canadian province's former attorney general breached the law in pursuing the cases.

Supreme Court Judge Sunni Stromberg-Stein said Wednesday that Wally Oppal, who lost his post in May in a tight election, acted improperly when he rejected the decision of one special prosecutor and hired a second to pursue criminal charges against Winston Blackmore and James Oler.

The attorney general "sought the appearance of an independent transparent process but then refused to accept the result," the judge said. His behavior was "precisely what the [Crown Counsel Act] seeks to avoid in order to maintain public confidence in the administration of criminal justice in this province."

Blackmore, 52, and Oler, 44, are leaders of separate factions in a community known as Bountiful, just outside of Creston, British Columbia.

Oler is a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, historically based in Hildale, Utah, and Colorado City, Ariz. Blackmore was the FLDS bishop of Bountiful before he was exiled from the sect in 2002 and replaced by Oler. The community split, with about half of the 1,000 residents aligning with Blackmore.

Willie Jessop, FLDS spokesman, said Oler's reaction to the ruling was characteristically low-key. "He said, 'Well, we'll thank our Father in Heaven and we'll carry on,' " Jessop said.

"We're very grateful for the judge's ruling today," Jessop said. "This was a clear example of someone being driven by a vindictive agenda rather than what's constitutional. This isn't just a big win for the FLDS, it's a win for all Canadians and Americans who enjoy freedom."

Blackmore, reached by telephone, said his family was pleased and relieved. "I hope that Canada can recognize the fact that we are a culturally diverse society just as all the other hundreds of cultures in our society are and the [Charter of Rights and Freedoms] applies to us as well," said Blackmore, who has long openly acknowledged his plural family.

He said it had been a "long hard year" for his family.

"We were all laboring under the question why us, when Canadian society is as liberal as it is?" he said. "Why pick a dinosaur law to bring back and harass us with? It was all about some form of persecution for us."

The Attorney General's Office filed polygamy charges against the men in January. Oler was accused of having two wives, while Blackmore was charged with having 20.

The cases were seen as a test of the conflict between the country's 1892 law banning polygamy, adopted to keep Mormons out of the country, and its Charter of Rights and Freedoms.

But they came after several earlier reviews, including one by Oppal's first prosecutor, that the ban was trumped by the Canadian Charter's religious freedom provisions; those analyses recommended the legal conflict be brought as a "reference question" to the province's Court of Appeals to resolve rather than in a criminal prosecution.

Oppal advocated filing charges and letting the defendants "worry about the constitutionality issue." The Attorney General argued that there was nothing "objectionable" in revisiting a case "even repeatedly" when there are conflicting views of what is in the public interest.

Defense attorneys for Blackmore and Oler argued the attorney general shopped for a prosecutor who shared his views. They said the first prosecutor's decision should have been final and binding.

That's how the judge saw it, noting she was ruling on the process for bringing the charges, not the merits of the allegations.

The act allowing hiring of special prosecutors to handle politically sensitive cases would be "frustrated" if decisions could be "revisited by successive special prosecutors, on the same mandate, until a decision is reached that the Attorney General publicly prefers," she said.

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