Mar 17, 2018

B.C. Supreme Court decision in polygamy case raises due process issue: law expert

Ian Burns
The Lawyer’s Daily
March 16, 2018

A B.C. Supreme Court justice has rejected a stay of proceedings for two men convicted of having multiple wives, rejecting arguments that the government’s lack of prosecuting them in the past was an admission they believed the Criminal Code’s provisions against polygamy were unconstitutional. But a law professor says the judge’s interpretation of one defendant’s additional claim was incorrect and could serve as grounds for an appeal.

The two defendants, Winston Blackmore and James Oler, are associated with the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), a fundamentalist Mormon faith community based in Bountiful, B.C., which has long been associated with plural marriages. They were convicted in July 2017 under s. 293 of the Criminal Code, which makes polygamy illegal.

Both men applied for a judicial stay of proceedings on the grounds of officially induced error. In October 1991, the RCMP conducted an investigation of Blackmore and others living in Bountiful, but declined to press charges on the basis of several expert legal opinions that s. 293 was in conflict with the Charter’s s. 2 guarantee of religious freedom. The defendants cited a 1992 news release from the province’s Criminal Justice Branch (CJB) that s. 293 was unconstitutional. They argued it was unfair they should be convicted in relation to conduct occurring during that period when the province’s highest criminal law authority considered the law invalid and did not enforce it against them.

Justice Sheri Ann Donegan rejected that argument, saying the press release was not an announcement that Blackmore or Oler’s conduct, or polygamy in general, was lawful, nor was it a declaration that s. 293 was unconstitutional, which is a matter for the courts or Parliament to determine (R. v. Blackmore2018 BCSC 367).

“Legal opinions, even if unanimous and offered by eminent jurists, are not a determination of the constitutional status of a legislative provision,” she said. “Moreover, the CJB does not have the authority to pronounce upon the lawfulness of a Criminal Code offence.”

Officially induced error is an exception to the principle that ignorance of the law is no excuse, where an error in law arises out of an error of an authorized representative of the state (Lévis (City) v. Tétrault 2006 SCC 12). Justice Louis LeBel said a stay in proceedings can be granted if a defendant considered the legal consequences of his or her actions, the advice obtained came from an appropriate official and the defendant relied on that advice in committing the act.

But Justice Donegan held the Crown’s non-enforcement of s. 293 does not constitute a representation or advice that polygamy was legal.

“The Crown’s decision not to prosecute for the years it held the opinion s. 293 was unconstitutional was an exercise in prosecutorial discretion in a particular case, made in the upmost good faith,” she said. “It was not a declaration by the state that the polygamy law was invalid or the applicants’ conduct was lawful.”

Justice Donegan said both Blackmore and Oler were “well aware” that polygamy is illegal but have not stopped the practice. She noted the 2011 reference by then-B.C. Supreme Court Chief Justice Richard Bauman that said s. 293 was constitutionally sound (Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588).

“Polygamy is illegal in Canada,” she said. “By choosing to criminalize polygamy, Parliament recognized the harm implicit in its practice and enacted the provision to prevent those harms.”

Blackmore submitted a further argument that prosecuting him for polygamy infringed on his s. 2 freedom of religion Charter rights. Justice Donegan noted Blackmore was not challenging the constitutional validity of s. 293, but said it was not open to him to collaterally attack the constitutionality of the polygamy ban by challenging an exercise of prosecutorial discretion to enforce what has been determined to be a valid law.

“The substance of his grievance appears to be with the impact of s. 293 on his religious liberty,” she said. “While the effects of the offence are manifested through prosecution, it is s. 293, not the prosecution of it, which causes the interference with Mr. Blackmore’s religious freedom.”

Blackmore also claimed the circumstances of the state’s dealings with him over the last 25 years, culminating in the prosecution for polygamy, demonstrated an abuse of process. But Justice Donegan said there was no conduct that could be considered misconduct by the state, apart from Blackmore’s claim that former provincial Attorney General Wally Oppal appointed successive special prosecutors in 2007 until one was prepared to prosecute him.

“The harm in the Attorney General’s conduct is that it … undermined the administration of justice by leaving the perception of political interference and of an oppressive or unfair prosecution,” she said. “However, I also conclude that the prejudice or harm to the integrity of the justice system occasioned by this conduct will not be manifested, perpetuated or aggravated by proceeding to the outcome of this trial.”

As a result, Justice Donegan dismissed the applications of both Blackmore and Oler for a stay of proceedings and registered the convictions. Her decision was released March 9.



Beverley Baines, professor of public and constitutional law at Queen’s University faculty of law, said it was “curious” Justice Donegan raised the constitutionality issue in her judgment.

“I’m surprised she interpreted Mr. Blackmore’s argument about the Charter as a challenge to the constitutionality of s. 293, given that he didn’t do that,” she said. “She gave no indication that she gave notice to the parties she intended to raise the constitutionality issue, so there’s a due process issue here.”

Baines said a “dilemma” with Justice Donegan’s ruling is her decision the polygamy reference decided by Justice Bauman in 2011 was a judgment and it was binding.

“I think that is wrong on both counts. In this case there’s a constitutional principle she didn’t raise, which is the separation of powers between the executive and the judiciary,” she said. “According to the separation of powers principle, reference opinions are decisions issued by judges who are performing non-judicial functions — in other words, their opinions are purely advisory and not judgments. It’s a constitutional principle and could be used to challenge her interpretation of the B.C. question.”

Baines said the issue of the constitutionality of s. 293 needs to be reopened, and the governments of B.C. and Canada need to give evidence-based information about the harm that is caused by polygamy to the women and children involved in such relationships.

“There’s no question this issue is not about religious freedom or freedom of expression, it’s about harm to women and children,” she said. “If they want to rely on that claim, there is no substitute for evidence from women who are currently living in polygamous relationships.”

Blair Suffredine, who represented Blackmore, declined to comment on the decision, as did special prosecutor Peter Wilson. Oler was self-represented. In a statement, the B.C. Ministry of the Attorney General said it would be “inappropriate to comment on the case” as it still before the courts.

“Dates for sentencing in this case will be scheduled in the coming weeks,” the Ministry said.



A B.C. Supreme Court justice has rejected a stay of proceedings for two men convicted of having multiple wives, rejecting arguments that the government’s lack of prosecuting them in the past was an admission they believed the Criminal Code’s provisions against polygamy were unconstitutional. But a law professor says the judge’s interpretation of one defendant’s additional claim was incorrect and could serve as grounds for an appeal.

The two defendants, Winston Blackmore and James Oler, are associated with the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), a fundamentalist Mormon faith community based in Bountiful, B.C., which has long been associated with plural marriages. They were convicted in July 2017 under s. 293 of the Criminal Code, which makes polygamy illegal.

Both men applied for a judicial stay of proceedings on the grounds of officially induced error. In October 1991, the RCMP conducted an investigation of Blackmore and others living in Bountiful, but declined to press charges on the basis of several expert legal opinions that s. 293 was in conflict with the Charter’s s. 2 guarantee of religious freedom. The defendants cited a 1992 news release from the province’s Criminal Justice Branch (CJB) that s. 293 was unconstitutional. They argued it was unfair they should be convicted in relation to conduct occurring during that period when the province’s highest criminal law authority considered the law invalid and did not enforce it against them.

Justice Sheri Ann Donegan rejected that argument, saying the press release was not an announcement that Blackmore or Oler’s conduct, or polygamy in general, was lawful, nor was it a declaration that s. 293 was unconstitutional, which is a matter for the courts or Parliament to determine (R. v. Blackmore2018 BCSC 367).

“Legal opinions, even if unanimous and offered by eminent jurists, are not a determination of the constitutional status of a legislative provision,” she said. “Moreover, the CJB does not have the authority to pronounce upon the lawfulness of a Criminal Code offence.”

Officially induced error is an exception to the principle that ignorance of the law is no excuse, where an error in law arises out of an error of an authorized representative of the state (Lévis (City) v. Tétrault 2006 SCC 12). Justice Louis LeBel said a stay in proceedings can be granted if a defendant considered the legal consequences of his or her actions, the advice obtained came from an appropriate official and the defendant relied on that advice in committing the act.

But Justice Donegan held the Crown’s non-enforcement of s. 293 does not constitute a representation or advice that polygamy was legal.

“The Crown’s decision not to prosecute for the years it held the opinion s. 293 was unconstitutional was an exercise in prosecutorial discretion in a particular case, made in the upmost good faith,” she said. “It was not a declaration by the state that the polygamy law was invalid or the applicants’ conduct was lawful.”

Justice Donegan said both Blackmore and Oler were “well aware” that polygamy is illegal but have not stopped the practice. She noted the 2011 reference by then-B.C. Supreme Court Chief Justice Richard Bauman that said s. 293 was constitutionally sound (Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588).

“Polygamy is illegal in Canada,” she said. “By choosing to criminalize polygamy, Parliament recognized the harm implicit in its practice and enacted the provision to prevent those harms.”

Blackmore submitted a further argument that prosecuting him for polygamy infringed on his s. 2 freedom of religion Charter rights. Justice Donegan noted Blackmore was not challenging the constitutional validity of s. 293, but said it was not open to him to collaterally attack the constitutionality of the polygamy ban by challenging an exercise of prosecutorial discretion to enforce what has been determined to be a valid law.

“The substance of his grievance appears to be with the impact of s. 293 on his religious liberty,” she said. “While the effects of the offence are manifested through prosecution, it is s. 293, not the prosecution of it, which causes the interference with Mr. Blackmore’s religious freedom.”

Blackmore also claimed the circumstances of the state’s dealings with him over the last 25 years, culminating in the prosecution for polygamy, demonstrated an abuse of process. But Justice Donegan said there was no conduct that could be considered misconduct by the state, apart from Blackmore’s claim that former provincial Attorney General Wally Oppal appointed successive special prosecutors in 2007 until one was prepared to prosecute him.

“The harm in the Attorney General’s conduct is that it … undermined the administration of justice by leaving the perception of political interference and of an oppressive or unfair prosecution,” she said. “However, I also conclude that the prejudice or harm to the integrity of the justice system occasioned by this conduct will not be manifested, perpetuated or aggravated by proceeding to the outcome of this trial.”

As a result, Justice Donegan dismissed the applications of both Blackmore and Oler for a stay of proceedings and registered the convictions. Her decision was released March 9.



Beverley Baines, professor of public and constitutional law at Queen’s University faculty of law, said it was “curious” Justice Donegan raised the constitutionality issue in her judgment.

“I’m surprised she interpreted Mr. Blackmore’s argument about the Charter as a challenge to the constitutionality of s. 293, given that he didn’t do that,” she said. “She gave no indication that she gave notice to the parties she intended to raise the constitutionality issue, so there’s a due process issue here.”

Baines said a “dilemma” with Justice Donegan’s ruling is her decision the polygamy reference decided by Justice Bauman in 2011 was a judgment and it was binding.

“I think that is wrong on both counts. In this case there’s a constitutional principle she didn’t raise, which is the separation of powers between the executive and the judiciary,” she said. “According to the separation of powers principle, reference opinions are decisions issued by judges who are performing non-judicial functions — in other words, their opinions are purely advisory and not judgments. It’s a constitutional principle and could be used to challenge her interpretation of the B.C. question.”

Baines said the issue of the constitutionality of s. 293 needs to be reopened, and the governments of B.C. and Canada need to give evidence-based information about the harm that is caused by polygamy to the women and children involved in such relationships.

“There’s no question this issue is not about religious freedom or freedom of expression, it’s about harm to women and children,” she said. “If they want to rely on that claim, there is no substitute for evidence from women who are currently living in polygamous relationships.”

Blair Suffredine, who represented Blackmore, declined to comment on the decision, as did special prosecutor Peter Wilson. Oler was self-represented. In a statement, the B.C. Ministry of the Attorney General said it would be “inappropriate to comment on the case” as it still before the courts.

“Dates for sentencing in this case will be scheduled in the coming weeks,” the Ministry said.



https://www.thelawyersdaily.ca/articles/6117/b-c-supreme-court-decision-in-polygamy-case-raises-due-process-issue-law-expert

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