After nearly 27 years since the initial police investigation into polygamy allegations in the community of Bountiful, the first successful prosecution of those charges in over a century is close to wrapping up.
Lawyers gathered in Cranbrook last week to argue the sentencing terms for Winston Kaye Blackmore and James Marion Oler, who had been found guilty of polygamy following a trial last year.
Tuesday, June 26, has been set for the sentencing decision that will be delivered by Justice Sheri Donegan for both Blackmore and Oler.
Crown counsel proposed a 90-day to six month prison sentence for Blackmore, while proposing a one month to 90 day prison sentence for Oler.
“The appropriate range of sentence I expect would be quite broad in general terms, for polygamy and I suppose it could range from a suspended sentence to a reasonably lengthily term of imprisonment,” said Wilson. “But the Crown’s submission here is that, in this particular instance, we’re dealing with first offenders involved in multiple marriages including with some, what I will call, underage women, the range I say is from one to six months imprisonment.”
Wilson argued against a conditional sentence order, which could allow for conditions such as house arrest, would be inappropriate given that Blackmore and Oler married girls as young as 15-years-old.
The last polygamy prosecutions occurred in 1899 and 1906, according to case law cited by Wilson.
The special prosecutor suggested that a sentence with a focus on deterrence would send a message to the rest of the Bountiful community.
“You’ve heard a lot about the practice of polygamy in Bountiful and the fact that it’s essentially a religious imperative,” Wilson said. “I say the practice is sufficiently widespread to justify a deterrence sentence as well as a denunciatory sentence and there is a very focused group that would be deterred, in this case.”
Wilson also pointed to harms associated with polygamy that were identified in the pre-sentencing reports as aggravating sentencing factors.
Following arguments from Special Prosecutor Peter Wilson and Blair Suffredine, Blackmore’s defence counsel, both accused had the opportunity to address the court.
Blackmore declined to say anything, while Oler thanked Justice Donegan for her patience, as he is unrepresented. However, Joe Doyle, who was appointed as an amicus curiae — a Latin term meaning friend of the court — is participating in the proceedings to ensure a fair trial.
While Wilson suggested prison terms for both Blackmore and Oler, Suffredine argued that a conditional or absolute discharge would be an appropriate sentence.
Suffredine walked back through the history surrounding the investigations and decisions from provincial crown beginning with the initial police reports from the early 1990s.
He argued that the number of Blackmore’s 24 marriages should not be used as an aggravating factor for sentencing punishment, given that crown counsel never initially charged him in the 1990s because they believed a prosecution would fail based on a Charter of Rights and Freedoms defence.
That uncertainty was settled in 2011 with the release of a constitutional reference decision, which validated that polygamy charges could be pursued and determined that the harms associated with polygamy outweighed the individual right to freedom.
Suffredine also challenged Crown’s assertion of polygamy harms, referencing the packed courtroom that was full of Blackmore’s relatives, including children and wives, while a video link was patched into a second courtroom to accommodate overflow.
Cranbrook Law Courts already attracting a crowd for Blackmore/Oler sentencing hearing. pic.twitter.com/Zk45X9MD7E
— Trevor Crawley (@tcrawls) May 15, 2018
“There’s no actual evidence of victims or harm and you’ll notice both that the courtroom is full of people, as is the other courtroom,” Suffredine said. “Those are almost entirely his relatives, his children and his wives, who’ve come to support him. There are a few exceptions, but not many.”
The challenge in determining a sentence is the lack of modern precedent for polygamy prosecutions and that there isn’t much in the way of recent case law to help guide Justice Donegan towards crafting an appropriate sentence.
However, even with a lack of case law, the judge is tasked with considering sentencing principles such as denunciation, deterrence, separation from society if necessary and rehabilitation.
Donegan told the court she hopes to have a sentencing decision delivered in less than six weeks.
While the polygamy proceedings are nearing an end, there is always the option that Blackmore or Oler could launch an appeal.
When Wilson approved the polygamy charges in August 2014, additional charges of the removal of a child from Canada were levied against Brandon James Blackmore, Emily Ruth Gail Blackmore and James Oler.
Brandon Blackmore and Emily Blackmore were found guilty by Justice Paul Pearlman and sentenced to a year in jail and seven months in jail, respectively, while Oler was acquitted. Emily Blackmore is appealing her case, while Wilson is appealing Oler’s acquittal.
Those appeals will be heard over two days in June.
It would be inappropriate to speculate on the potential for further polygamy charges for members associated with Bountiful and whether Wilson would lead any potential prosecutions, said a spokesperson for the Ministry of Justice.
“Mr. Wilson had a mandate to assess investigations that were brought before him, conduct the charge assessment, prosecute those charges that he approved along with any intended appeals,” said Dan McLaughlin, the communications counsel for the Criminal Justice Branch. “The mandate will have to run its course.”