Aug 28, 2018

B.C. Appeal Court overturns acquittal in child removal case against convicted polygamist

Lisa Silver, University of Calgary
Ian Burns
The Lawyer's Daily
August 27, 2018


R. v. Oler 2018 BCCA 323

R. v. Libman [1985] 2 S.C.R. 178

R. v. Blackmore 2017 BCSC 192

The British Columbia Court of Appeal has overturned the acquittal of a convicted polygamist on charges of removing a child from Canada, saying the trial judge erred in his conclusions that the actus reus of the offence could only be made if the respondent was in Canada during the commission of the offence.

The offence in question occurred in 2004, when James Oler was the bishop of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) in Bountiful, B.C. Warren Jeffs is the so-called “prophet” of the FLDS church and resides in the United States. According to the court documents, Jeffs told Oler to bring his 15-year-old daughter, identified only as C.E.O., to Nevada in order to enter into a “celestial marriage” with a member of the church. In 2005, Oler was charged, along with two other accused in a related case, with removing a child from Canada, in violation of s. 273.3 of the Criminal Code.

At trial, Justice Paul Pearlman of the B.C. Supreme Court ruled the Crown had not proved the actus reus of the offence beyond a reasonable doubt, saying there were gaps in evidence relating to the location of Oler and C.E.O. during the time in question. He said the “paucity of evidence” was capable of supporting an alternative conclusion that Oler did nothing in Canada for the purpose of removing C.E.O. from the country (R. v. Blackmore 2017 BCSC 192).

“I conclude that the Crown has failed to prove beyond a reasonable doubt an essential element of the offence [that he acted in Canada] against James Oler,” he wrote, acquitting him of the charge.

However, the Crown appealed, arguing the “territorial view” in the judge’s decision was wrong in law. Oler’s amicus curiae, Joseph M. Doyle, contended the law did require that Oler act while in Canada.

Justice Mary Saunders, who wrote the unanimous opinion of the court, sided with the Crown, ruling the law did not require Oler to be in Canada when committing the actus reus of the offence in order to be convicted.

“The offence rebuts the presumption against extraterritorial application of the criminal law in light of Canada’s legitimate interest in redressing crime perpetrated against children ordinarily resident here,” she wrote. “Further, the actus reus of doing ‘anything’ is of the widest possible scope and no restrictions should be placed upon it which Parliament did not include.”

Justice Saunders noted the Supreme Court’s decision in R. v. Libman [1985] 2 S.C.R. 178, which held “all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada.” She added the “question before us is whether a person may commit an offence contrary to s. 273.3 when he or she is not within Canada during the events in issue.”

“In my view, the answer is clearly yes,” she read. “Section 273.3 rebuts the presumption against the extraterritorial application of the criminal law because it easily meets the necessary condition in Libman that there is the real and substantial link between the offence charged and Canada.”

The court ordered a new trial, but did not accept the Crown’s request to enter a conviction in place of the acquittal. Justice Saunders was joined by Justices Lauri Ann Fenlon and Susan Griffin in her decision, which was released Aug. 21 (R. v. Oler 2018 BCCA 323).

Alisia Adams of the B.C. Prosecution Service declined to comment on the specifics of the case, but did note the Court of Appeal’s decision in this case was separate from the case against Oler on charges of polygamy, for which he was convicted at the end of June.

“I can advise that, other than the retrial ordered for Mr. Oler, there are no outstanding criminal charges relating to polygamy in Bountiful,” she said.

Lisa Silver, an assistant professor of criminal law at the University of Calgary, said she could “spend a week to try and figure out if the [Court of Appeal] covered everything,” but added the decision seemed to be consistent with precedence on child abduction cases and, from a statutory interpretation point of view, with the objectives of s. 273.3 which is to stop people from taking someone from Canada to arrange these “celestial marriages.”

“Libman has really broadened the perspective of jurisdiction when it relates to an accused person committing offences outside of Canada,” she said. “The B.C. Court of Appeal said this particular offence under s. 273.3 is actually all about removing somebody outside the jurisdiction, so it makes sense under a statutory interpretation that it includes an accused who may be outside of Canada on the basis of Libman and the substantial link.”

Silver noted discussion in the decision regarding whether the case against Oler should be sent back for a new trial or whether the court was just going to enter a conviction, as requested by the Crown.

“The court is right that there’s a pretty high standard to entering a conviction after an acquittal, but they do do it,” she said. “But here I think the feeling is that the accused really led with this jurisdictional argument, but now that that’s gone, you have to give him the ability to test the whole case against him.”

Doyle of Johnson Doyle Sugarman & Ferguson, who was Oler’s amicus curiae throughout the appeal, did not respond to requests for an interview.

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