Bountiful, Winston Blackmore, and the BC Government’s backdoor approach to prosecution

So I’ve been reading that sentencing is being scheduled for Winston Blackmore. He’s the guy that has been the leader of the Bountiful religious sect for some time. Winston has a lot of wives. He doesn’t deny that he has a lot of wives. I don’t care that he has a lot of wives. I don’t think that Canadians care that he has a lot of wives. We are at a time now in our society where relationship structures that are beyond what are usually recognized as normal are a curiosity. People watch Sister Wives on television in the evening.  It’s a show about a polygamous family presently living in Nevada. Each of the wives on the show got married when they were adults to a guy who was up front from the outset that he lived in a polygamous lifestyle.   They all live together.   This is not on late night TV, or some alternate sex channel, it’s mainstream television entertainment. I have yet to encounter anyone who seems particularly distraught about someone having multiple wives. There’s no broad based emotional reaction to this, it’s a curiosity and nothing more.

So what’s the deal in BC? Why the prosecution on polygamy charges? Peter Wilson, a well known lawyer in British Columbia, was privately retained by the Crown and asked to look into the prosecution of Winston and the bountiful sect. He wasn’t the first one to be asked to look into this.  There’d been a series of opinions that the polygamy legislation was not constitutional.   The Crown kept trying until they found someone who would say yes.   Why are we concerned about Winston Blackmore? Here’s the problem, it’s alleged that Winston marries girls when they are very young, too young to consent, or old enough to consent but in a situation in which he stands in a position of authority to them, and hence their consent is not validly given. That’s definitely something that Canadians get upset about. Bring that up at the dinner table and you’re not going to find anyone that thinks that’s okay. It’s a moral issue for Canadian’s, and spawns some significant emotional reaction.

The criminal law in Canada, as set out in the Criminal Code, is about addressing moral blameworthiness.  As Canadians we expect conduct that we have an negative emotional reaction about to be sanctioned by the state. The place for that is in the Criminal Code. In fact, in the Criminal Code there are provisions that address this very conduct.  Here’s section 153 which sets out the conduct that is criminalized:

Sexual exploitation
  • (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

    • (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

    • (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

       

      A young person is defined as well:

    • Definition of young person

      (2) In this section, young person means a person 16 years of age or more but under the age of eighteen years.

    • Here’s the section that sets out the punishment for the criminalized conduct:
    • Punishment

      (1.1) Every person who commits an offence under subsection (1)

      • (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

      • (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

British Columbia has not chosen to proceed under this section of the law.  As I understand it Peter Wilson determined that there may not have been enough evidence to meet the standard of prosecution for this offence.     Instead, the Province of British Columbia has elected to proceed under section 293 which provides:

Polygamy
  • (1) Every one who

    • (a) practises or enters into or in any manner agrees or consents to practise or enter into

      • (i) any form of polygamy, or

      • (ii) any kind of conjugal union with more than one person at the same time,

      whether or not it is by law recognized as a binding form of marriage, or

    • (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

    is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The possible sentences on these offences are instructive to say the least.  A charge of Sexual Exploitation has a maximum sentence of 14 years in prison and a minimum sentence of one year (though that one year sentence may have been struck down, I don’t recall).   The charge of Polygamy has a maximum sentence of 5 years.  Have in mind that these have been law for a long time.  The polygamy charge has been in the Criminal Code since at least the 1890’s.  That was a time when people were fairly worked up about that kind of conduct, though there’s good argument to suggest that what they were really worked up about was Mormonism, and this seemed a handy backdoor way to get rid of it.

Step ahead about 120 years, and it seems that we’re still doing things by the back door route.  We’re prosecuting Winston Blackmore using a law that is no longer regarded in Canadian society as being one about a moral wrongdoing.   As I understand Peter Wilson’s conclusion the Crown does not have enough to proceed with a prosecution for the conduct that we find really obnoxious and highly deserving on censure, and so the answer is to proceed with a prosecution using  a law that is entirely archaic and has become irrelevant because we find Winston Blackmore conduct as being one that is highly obnoxious and deserving of censure.   This is reasoning that does not bear examination.   Let’s use a parallel argument here.   Take a situation where someone is suspected of a serious criminal action, like robbery,  but that there is insufficient evidence to prosecute for that offence.   We can all agree that is conduct that bears some moral condemnation.   Now if we suggest that the police should start to ticket that person every day for every motor vehicle infraction that can be found, that they should follow the person around and continue ticketing until such time as the fines become so high that they serve jail instead, have we addressed this in the right way?    We’ve gotten to a possible jail sentence, but have we done it the right way?    I saw we have not.  We’ve tried to go by a backdoor to something that we cannot get by going through the front door, and that’s a dishonest way of applying the criminal law.

 

Part two

Now that Winston Blackmore and James Oler have been found guilty of Polygamy in the BC Supreme Court, they are to be sentenced.  The Crown is seeking something between 90 days and 6 months for Winston Blackmore, and one month to 90 days for James Oler.   You can be assured that these convictions will be appealed.   This is where I as a taxpayer feel some ire.  This polygamy law itself was referred to the Supreme Court of British Columbia to assess whether it was constitutional in the first place.  That hearing I understand consumed 42 days.   The BC Supreme Court is not the final arbiter on such a matter.  Now we’ve had this entire criminal prosecution, and face a very likely appeal to the BC Court of Appeal to be followed by an appeal to the Supreme Court of Canada.  This is absolutely enormous expense incurred by the Crown to chase after something that has a maximum sentence of 5 years, and… more importantly, conduct that they are at the time of sentencing going to suggest to the court bears a sentence of between 90 days and 6 months at the high end.   Good grief, an astounding waste of taxpayers money and court time.    This prosecution never should have proceeded on these charges.  Doing so was intellectually dishonest and not befitting a crown agency.   The Crown hunted around through one lawyer after another to find the opinion that it was looking for, to find someone, in this case Peter Wilson, who would say “we can do it this way”.   Just because you can do something does not mean you should, and this is an example of that.

Update:  June 26, 2018 – The sentencing is complete.  That does not mean the appeals are complete.   The sentence..  yeah…. ….  hows about a 6 month conditional sentence for Winston Blackmore, and a 3 month conditional sentence for his co-accused James Oler.   A conditional sentence is a jail sentence that can be served conditionally, which usually means at home.  They each have a year of probation to follow.   Very meaningful.  I say that with sarcasm.  It’s not meaningful at all.  Weren’t we really more concerned about a person in authority having a sexual relationship with a young person?  Winston Blackmore is the closest thing to an actual god that can exist within his community.  How is it that he’s not “in a position of authority”?   He had wives as young as 15 years old.  That’s so far within the definition of young person that there’s no contesting it at all.   Unless he’s suggesting that he’s not had sexual relations with these women???…… no, I have not heard him make that suggestion.

The Crown has a number of principles they are to consider as they proceed with a prosecution.  One of those principles is that the prosecution must be “in the public interest”.     This prosecution was not only unprincipled at it’s outset, it remained unprincipled, and completely missed the public interest component.

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