CRANBROOK, B.C. — A lawyer for a Mormon fundamentalist leader says he will be seeking a stay of a polygamy charge because the evidence being used in the B.C. Supreme Court trial was already presented in a previous constitutional reference case.
Blair Suffredine, the defence counsel for Winston Blackmore, said he intends to file an application for abuse of process next week based on the Crown's reliance on evidence that was collected before a constitutional reference test in 2011 that deemed polygamy a criminal offence.
Blackmore, the head of a religious group in the southeastern B.C. community of Bountiful, is accused of marrying 24 women.
Suffredine's argument is based on a previous polygamy charge against Blackmore which was thrown out of court over allegations of "special prosecutor-shopping."
In 2007, Richard Peck was appointed as a special prosecutor to examine evidence of polygamy that resulted from a police investigation into Blackmore and James Oler, who also served as a bishop in the fundamentalist community.
Peck declined to pursue charges based on the constitutional argument of religious freedom but recommended that a constitutional reference case be brought forward to test the criminality of polygamy.
Former attorney general Wally Oppal later appointed Terry Robertson to the case, who decided to move forward in prosecuting polygamy.
The charge was eventually thrown out, as well as Robertson's appointment as a special prosecutor, on the grounds that Oppal had unfairly searched for a prosecutor willing to pursue charges when others had declined.
A constitutional reference case went forward with a ruling in 2011 that upheld laws criminalizing polygamy, determining it didn't violate religious freedoms guaranteed in the Charter of Rights and Freedoms.
Suffredine said his charter argument next week will rest on the fact that all evidence being presented at the current trial was collected before the constitutional reference case and cannot be used.
"What I'm saying is that this prosecution is all based on the old evidence that pre-dated the reference and no new evidence of anything else since the reference," Suffredine said outside court Thursday. "Therefore, it is an unfair trial to now come back and prosecute them when nobody knew at the time whether they were committing any crime."
At the start of the trial, Suffredine told the court he didn't intend to file a charter challenge, but changed his mind as the proceedings went on and he saw the scope of the Crown's evidence.
Suffredine's intention to file notice follows a voir dire — a process to determine the admissibility of evidence — for statements Blackmore's co-accused, Oler, made to police.
Justice Sheri Donegan will issue her voir dire ruling on Monday, before the Crown resumes its case.
"So then at that point, I'm going to argue the charter that this is an abuse of process because we now know what all the evidence is and we know it's entirely based on events that preceded the reference," Suffredine said.
The trial is currently in its eighth day and has heard testimony from mainstream Mormon experts, law enforcement who worked on the investigation and Jane Blackmore, a former wife of Winston Blackmore who left the community in 2003.