The last stage of the state’s case against William Blackmore has come to close, as his conviction for polygamy (Criminal Code s. 293) was confirmed at the B.C. Supreme Court last week. As discussed earlier on this blog, Mr. Blackmore had launched a challenge including several constitutional arguments after being originally convicted, in an effort to stay the proceedings against him.
Among other issues, he had argued that the way the state went about prosecuting him harmed his Section 7 liberty interests. This included a letter from the Attorney General at one point which advised him that s. 293 was unconstitutional, a delay of many years in charging him, and the state seeking a series of Special Prosecutor opinions until it found one that supported its position. However, prosecutors enjoy wide, protected discretion which make their decisions difficult to challenge, so he would have had to show a more egregious or malicious “abuse of process.” The Court found that none of these actions rose to the level of abuse. Only the special prosecutor issue raised a serious problem for the Court, which found that it had already condemned this in a prior ruling and that justice did not require it to do so again (para 278).
Of more central importance to the religious freedoms at stake, Blackmore had argued for an exemption under Section 2(a) of the Charter. Specifically, he argued that his marriages flowed from a sincerely held religious tradition, and that the state needed to show some kind of actual harm in order to convict him. This too was rejected – the Court applied the Polygamy Reference, which previously dealt with Charter issues around s. 293. They found that Blackmore had raised no new legal issues that weren’t considered in the Reference – his situation of religiously motivated multiple marriages was the same as the religious communities who were considered in that trial. His harm argument was also dismissed, because the Reference found that harm is inherent to the practice of polygamy and does not have to involve any particular individual abuse (paras 310-313).
Blackmore will be sentenced in May, and is still considering whether to appeal. If he does, it will represent the first time an appellate level court in Canada weighs in on these thorny Charter issues.
This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.