A special prosecutor will not be approving any further charges stemming from investigations into a polygamous community south of Creston.
The announcement included a statement from Peter Wilson, a special prosecutor appointed by the provincial government, who reviewed evidence collected by law enforcement and approved charges relating to investigations into Bountiful, a fundamentalist Mormon community in the southern interior of B.C.
Wilson approved and prosecuted polygamy charges against Winston Blackmore and James Oler, while also approving charges of removal of a child from Canada stemming from underage child brides that were taken from the community and married to American men associated with the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS).
In 2014, Brandon James Blackmore, Emily Ruth Gail Blackmore and Oler were charged with the removal offences. The Blackmores were eventually found guilty of removing a 13-year-old girl to marry Warren Jeffs, the FLDS leader, while Oler was acquitted of the same charge for removing a 15-year-old girl to marry an American FLDS member.
However, Oler’s acquittal was overturned on appeal and a new trial was ordered, where he was subsequently found guilty.
Buried in the announcement from the B.C.Prosecution Service is new information describing the circumstances of additional child removal charges recommended against three unnamed suspects that were not pursued due to an unlikely chance of conviction.
Wilson’s statement broke down the proposed charges against Suspect 1, Suspect 2 and Suspect 3, who were investigated for the removal of additional children — Child 4 and Child 5 — from Canada.
In the proposed count against Suspect 1, there was no evidence in relation to the removal of two children in 2014, when Wilson reviewed the initial report to Crown Counsel. However, while new evidence makes it possible to prove that Suspect 2 made a phone call to direct Suspect 2, Crown is unable to prove Child 4 and Child 5 were being sent across the border for the purpose of a polygamous marriage.
The count against Suspect 2 suffered from the same problem as Suspect 1 — there is no ability for the Crown to prove that Child 5 was being taken to the U.S. for the purpose of a polygamous marriage. Additionally, there is no evidence that Suspect 2 ever crossed the border at all.
Problems with the count against Suspect 3 included the inability to prove the mental element of the crime. In an interview with investigators, Child 5 said her father, Suspect 3, told her he knew she was to be married to FLDS church leader Warren Jeffs, but did not think she would “marry him so young”.
When pressed by the investigator, Child 5 added that he [Suspect 3] “thought it’d be like in a few years”, a statement that Wilson characterized as fatal to the prosecution’s case against Suspect 3.
Central to the Crown’s case in all removal of a child from Canada prosecutions, within the context of the FLDS, is the expectation that sexual relations is is foreseeable as a certain consequence of the marriage. The belief that sexual relations in both marriages involving Child 4 and Child 5 would be deferred was a recurring theme in the evidence, according to Wilson.
Wilson also analyzed the possibility of prosecuting under a human trafficking law. However, he said there would be problems proving an exploitation aspect, which involves a definition where a victim is caused to fear for their safety if they failed to provide a labour or service.
Under the language of the human trafficking law, Wilson added it would difficult to prove that Child 4 and Child 5 were providing a labour or service under the economic terms of the exploitation definition.
Wilson also explored the possibility of sexual exploitation charges against Winston Blackmore and James Oler, but those allegations — within the polygamous element of the FLDS faith — contain numerous prosecution issues. Wilson agreed with a previous legal opinion that polygamy is the core problem.
Alongside Wilson’s legal outline of the Bountiful prosecution, the RCMP also issued a statement outlining its commitment to a thorough investigation and support of the judicial proceedings.
“The investigation was started by the Creston RCMP and transitioned to the Southeast District Major Crime Unit,”said Insp. Brent Novakoski, Southeast District Senior Investigating Officer, BC RCMP Major Crime.
“The dedicated investigators worked tirelessly to gather information and evidence about historical allegations in the community of Bountiful that occurred in the late 90’s to around 2005. Ultimately multiple charges were supported under the polygamy provisions of the Criminal Code and the unlawful removal of children under the age of 16 years from Canada for a sexual purpose.”
The RCMP statement also noted that while the investigation into the specific allegations prosecuted by Wilson is over, any future allegations will be pursued.
A prosecution decades in the making
Investigations into allegations of polygamy in the community of Bountiful go back decades.
Two Bountiful individuals were investigated for polygamy offences in the early 1990s, however, prosecutors did not approve charges because the standard of a substantial likelihood of conviction was not met. That decision was informed by legal opinions citing the constitutional validity of charging someone under Section 293 of the Criminal Code — Canada’s polygamy law.
The opinions concluded that Section 293 was inconsistent with religious rights enshrined in the Canadian Charter of Rights and Freedoms.
In 2005, police launched an investigation into sexual exploitation allegations in Bountiful, however, proposed charges were never tried in court as Crown lawyers were not confident of a substantial likelihood of conviction.
A special prosecutor, Richard Peck, was appointed in 2007 to consider charge assessments relating to proposed charges stemming from the Bountiful investigation, but concluded no charges should be laid. Peck’s analysis found that polygamy is the root of the problem and recommended testing the constitutional validity of Section 293 in the B.C. Court of Appeal — essentially putting the polygamy law on trial to see if it would survive or fail a constitutional challenge.
Following Peck’s recommendations, Leonard Doust was appointed by Wally Oppal, the B.C. Attorney General, to review Peck’s findings. Doust came to the same conclusions that Peck did, particularly the constitutional concerns over a potential challenge to the polygamy law.
Oppal then appointed a second special prosecutor, Terry Robertson, for a second charge assessment of the police investigation into Bountiful, who approved polygamy charges against Winston Blackmore and James Oler, in January 2009. However, those charges were thrown out after a B.C. Supreme Court ruling quashed Robertson’s appointment, following allegations of “special prosecutor-shopping”.
That ruling also set in motion a constitutional reference case led by Justice Robert Bauman, a two-year legal endeavour that sought to determine whether Section 293 was consistent with the Charter and establish the necessary criminal elements of a polygamy offence.
In 2011, Bauman delivered his ruling upholding the constitutionality of Section 293, noting that it seeks to protect against the harms associated with polygamy while minimally impairing religious freedom. However, Bauman also concluded that Section 293 violates Charter rights to life, liberty and security of the person by criminalizing young girls between 12 to 17 years of age who had entered into polygamous marriages, suggesting that Parliament find a solution.
With that constitutional reference ruling, a legal framework for a polygamy prosecution was established.
Wilson was appointed as a special prosecutor in 2012, initially to assess charges of sexual exploitation and other offences, however, his mandate was soon expanded to include polygamy related offences.
Heading to trial
Polygamy charges against Winston Blackmore and James Oler were announced by the BC Prosecution Service six years ago in the summer of 2014. Additional removal of a child charges were also announced against Brandon James Blackmore and Emily Ruth Gail Blackmore and James Oler.
Wilson approved the charges after reviewing an RCMP report from 2013 that focused on sexual exploitation and polygamy related offences, while the second report, delivered early in 2014, focused on the child removal offences.
Key to the Crown’s case, in both matters, was establishing the doctrinal significance of plural marriage (polygamy) to the FLDS faith, and following a religious matrimonial ceremony, there would be the expectation of sexual intercourse.
Additional key evidence included church and priesthood records that were seized by law enforcement from a temple vault at the Yearning for Zion ranch, an FLDS community in Texas, in 2008.
Meticulous record-keeping was identified by expert witnesses as a central principle to the FLDS faiath, and records taken from the YFZ ranch were admitted as evidence into both matters following admissibility hearings.
Further evidence was presented to the court through testimony from former members of the Bountiful and FLDS community, describing their experiences growing up and living in the faith as well as the ideological division that occurred after Warren Jeffs became the church leader and prophet.
Both proceedings were prosecuted out of Cranbrook Supreme Court.
Winston Blackmore and James Oler were both found guilty of practicing polygamy, and sentenced to six months and three months, respectively, of house arrest.
Brandon James Blackmore and Emily Ruth Gail Blackmore were found guilty of the removal of a child from Canada charge, and sentenced to 12 months and seven months jail, respectively. Oler was acquitted, however, Crown successfully challenged the acquittal, and the B.C. Court of Appeal ordered a new trial.
Oler was found guilty in the second trial and sentenced to 12 months jail.
trevor.crawley@cranbrooktownsman.com
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