Canadian polygamy law on trial for the first time in 127 years

By: Daphne Bramham

It’s almost certainly going to come down to a battle over religious freedom when Canada’s 127-year-old polygamy law is tried for the first time in Canadian history.  Canada’s best-known polygamist, Winston Kaye Blackmore, and his former brother-in-law, James Marion Oler, will face one count each of polygamy when the trial begins Tuesday in B.C. Supreme Court in Cranbrook.

There are 24 women listed on Blackmore’s indictment who are alleged to have been married in a religious ceremony or had conjugal relations with Blackmore, 61.

By contrast, Oler’s indictment lists “only” four.

Both are former bishops of the Fundamentalist Church of Jesus Christ of Latter Day Saints and descendants of the six founding fathers of Bountiful, a community of about 1,500 people in southeastern B.C.

Blackmore has never tried to disguise the fact he has multiple wives, who have borne him 146 children.

He spoke about his multiple wives at a 2005 polygamy summit that his wives organized. He’s talked about it with reporters and in civil trials in the United States. Under oath in Federal Tax Court in 2012, Blackmore struggled to name all his wives, missing one. It was only after he was prodded by the government’s lawyer that he got them all. Asked how many children he had, Blackmore said he’d have to call home to find out.

Blackmore has admitted that 10 of his wives were 17 or younger when they were married. In a deposition filed in a Utah civil trial in 2014, Blackmore said three of his brides were 16 and one was 15. Despite that admission under oath, Blackmore has never been charged with sexual exploitation or sexual interference.

By contrast, 53-year-old Oler has never spoken publicly and has refused legal counsel. To help the court with legal issues and ensure fairness, Joseph Doyle was appointed as an amicus for this trial.

Doyle was also the amicus in November when Oler faced the more serious charge of removing a child from Canada for an illegal purpose. Oler’s acquittal is being appealed.

The road to this trial, which starts Tuesday, is decades long, winding and marked by missteps along the way.

For more than 70 years polygamy has been practised in Bountiful. But local, provincial and federal governments not only ignored it, they funnelled money into the community in the form of child benefits, private school grants and money for a private midwives’ clinic.

Local residents turned a blind eye. Nurses and doctors occasionally saw the same man at the side of different women giving birth in the hospital and watched as he signed both birth certificates indicating he was the father.

Because no one complained, the first RCMP investigation didn’t even take place until the 1990s. The targets of the investigation were Blackmore and Oler’s father, Dalmon.

It was prompted by complaints by Debbie Palmer — James Oler’s half-sister and Dalmon’s daughter. She is also Blackmore’s stepmother, having married Winston’s father when he was 55 and she was 15, and his sister-in-law. Palmer’s sister, Jane, was Blackmore’s first and only legal wife.

Although RCMP recommended charges, lawyers in the attorney general’s ministry refused to lay them. For more than a decade after that, provincial lawyers refused to approve charges because of never-published legal opinions that the law was invalidated by the 1982 Charter of Rights and Freedoms.

The zeitgeist was reflected in a report to the government done in 1993 by O. Gary Deatherage, the director of the local Mental Health Centre: “We . . . do not view this religious community as being bizarre or particularly cult-like, but instead view it as another manifestation of multiculturalism, a different way of expressing spirituality.”

But by 2007, then Attorney General Wally Oppal had had enough. He appointed special prosecutor Richard Peck to review the RCMP files. But rather than laying charges, Peck agreed with the previous opinions that the law’s constitutionality was in doubt. He recommended a constitutional reference case. Oppal disagreed and over the course of the next two years appointed two more special prosecutors until the third finally agreed to lay charges.

In 2009, Blackmore and Oler were each charged with one count of polygamy. But those charges were stayed after a judge agreed with Blackmore that the second and third prosecutors had been improperly appointed.

The only course left was a constitutional reference case. After months of evidence and deliberation, in 2011 the B.C. Supreme Court ruled that because of polygamy’s inherent harms the law is a justifiable limit on both religious freedom and freedom of association.

That cleared the way for prosecution. Peter Wilson became the fourth special prosecutor and in August 2014, he charged Blackmore and Oler with one count each of polygamy.

Oler, along with Blackmore’s brother, Brandon, and sister-in-law Emily Ruth (Gail) Blackmore, was also charged with unlawful removal of a child from Canada for sexual purposes.

The “removal” trial was held in November. The Blackmores were found guilty and are awaiting sentencing.

This will be a much different trial with fewer witnesses and fewer testimonies from former residents about life in Bountiful. Instead, it’s scheduled for only two weeks and will be a distilled and tightly focused replay of some of the legal issues from the constitutional reference case.

Blair Suffredine, Blackmore’s lawyer and a former Liberal MLA, has said that he won’t challenge the criminality of polygamy. Rather, he will question the right of an individual to not be punished for practising his religion.

Regardless of how Suffredine frames it, the questions that Justice Sheri Ann Donegan will have to decide are: Is the Charter guarantee of religious freedom a blanket protection or are there limits to it? And, if there are limits, is the practice of polygamy covered by it?

These are thorny issue that have bedeviled not only Canadian and B.C. lawmakers over the past century, but those in other countries as well.

India’s Supreme Court is currently hearing a polygamy case involving the Muslim practice of polygamy and contracted marriages of specific lengths. The government’s position is that it can’t be allowed in a secular society because it conflicts with women’s constitutionally guaranteed right to equality. It also argues that polygamy is not a religious practice but a social custom sanctioned by religion.

In Utah last month, the state legislature enacted a new polygamy law. The previous one was struck down in 2013 by a federal judge after the Brown family from the reality TV show “Sister Wives” was investigated.

In an attempt to narrow the definition, Utah’s new law says that an offender would have to live with more than one spouse and must “purport to be married.”

Three days after the B.C. government announced in 1992 that Blackmore would not be charged, he declared “victory over our enemies” during a Sunday sermon to about 200 people.

He preached about “the Principle” of polygamy, reminding his followers that not one year should go by when children are not born into a polygamous marriage.

Blackmore also bought a framed copy of the Charter of Rights and Freedoms and hung it in his office.

His successful challenge to the appointment of special prosecutors in the mid-2000s further emboldened him to believe that he and his several hundred followers may indeed be above the law, if not specifically protected by it.

Even this time, Blackmore has tried unsuccessfully to have the charge quashed using the same grounds as before — that the special prosecutor was improperly appointed. Last week, Suffredine argued for another delay. He wanted the Blackmore/Oler trial to be split in two because the evidence against one could be prejudicial to the other. Separating the trials, he said, would also allow Blackmore to officiate at a family member’s funeral.

The judge disagreed and the two men will be tried together.

The prosecutor’s case will largely rest on documentary evidence and expert testimony about polygamy’s practice both in the early mainstream Mormon church and later in the breakaway fundamentalist groups such as the FLDS.

Texas ranger Nick Hanna will testify about the FLDS marriage records found in a concrete-encased vault during a 2008 raid on the Yearning for Zion Ranch. Entering those documents as evidence should not be an issue since they’ve already been used in both the constitutional reference case and the recent “removal” trial.

Richard Bennett, a Brigham Young University professor of church history and doctrine, will be called to explain the genesis of polygamy within the Mormon tradition, why it was disavowed in 1890 and how that led to the splintering off of individual families such as the Browns, Blackmore’s group and larger ones such as the FLDS.

Unlike the removal trial, when a number of former Bountiful residents testified and provided gripping descriptions of what it was like to grow up there, this time only one is expected to be subpoenaed: Jane Blackmore.

As a former wife and a midwife, she has a unique view of what was happening in the fundamentalist Mormon community that she and the others were born into.

None of the other wives is expected to be called even though as many as half of them have moved on from Bountiful, left the religion and even remarried.

In November, Jane Blackmore’s testimony focused on what she was taught as a young girl about polygamy or “celestial marriage,” about the importance of obedience to their prophet, their fathers and husbands, and about the primary roles that women are expected to fulfill.

This time, she will undoubtedly be asked about her sister wives and maybe even about her sisters-in-law.

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Daphne Bramham: Canadian polygamy law on trial for the first time in 127 years