B.C.'s 'prosecutor shopping' dooms polygamy case

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A polygamy case against Winston Blackmore and James Oler, two men who have numerous wives, was quashed by the Supreme Court of British Columbia because the provincial government acted unfairly in pursuing the prosecution.

The ruling Wednesday stunned those who wanted to see the landmark case put polygamy on trial in Canada.

"I'm absolutely devastated. I've been crying so hard. I can't find words to describe how I feel," said Nancy Mereska, co-ordinator of a group called Stop Polygamy in Canada.

"The polygamists will see this as a great victory. … My God! My God! My God! My heart is broken!" she wrote in a blog posting.

Mr. Blackmore told CTV the case had put him and his community under a lot of stress and he's glad it's over.

"It has been a long hard summer for us. Long hard year for us. Not just summer. It's taken a toll on us. It's taken a toll on many of our family members," he said.

"So we're going to just celebrate today and hopefully the future. … I mean I'm, I'm very pleased."

Premier Gordon Campbell said his government still wants to resolve the polygamy issue, but he isn't clear what the legal remedy is. "I was surprised and disappointed when I heard the ruling," he said. "I think it's important to solve the issue [of polygamy] The question is, how do you solve it?"

Madam Justice Sunni Stromberg-Stein found that the former attorney-general of B.C. had unfairly gone "special prosecutor shopping" when he ignored the advice of two prosecutors and kept searching until one was found who wanted to press charges.

By doing so, Judge Stromberg-Stein said, the attorney-general "upset the critical balance that … should be kept between political interference and accountability."

The judge quashed the appointment of special prosecutor Terrence Robertson who was assigned the high-profile case last year under the attorney-general at the time, Wally Oppal.

The ruling had the effect of throwing out the Crown's case against Mr. Blackmore, who was charged with having 19 wives, and Mr. Oler, who was charged with having two wives.

The two men are rival leaders in a polygamous community near the settlement of Bountiful, in southeastern B.C. and their controversial lifestyle has long been the focus of police and government interest.

Judge Stromberg-Stein noted that before Mr. Robertson's appointment, two previous prosecutors had advised Mr. Oppal not to proceed with charges.

After the RCMP recommended charges, four senior Crown counsel, including assistant deputy attorney-general Robert Gillen, advised Mr. Oppal there was little chance of conviction.

But Mr. Oppal sought the appointment of a special prosecutor and Richard Peck was assigned.

Mr. Peck concluded there should be no criminal charges laid.

A few months later, however, Mr. Oppal sought the appointment of an ad hoc prosecutor, Leonard Doust, to review Mr. Peck's findings.

Mr. Doust subsequently confirmed Mr. Peck's views.

"Following the receipt of Mr. Doust's opinion, the attorney-general was quoted in the media as saying he favoured laying a polygamy charge but prosecutors in the Criminal Justice Branch believed the case would fail because of a constitutional violation of religious freedom," Judge Stromberg-Stein states in her ruling.

She said the attorney-general then sought "a more aggressive approach" which led to the appointment of Mr. Robertson.

Mr. Robertson, whose decision-making independence was not questioned in court, favoured laying charges.

Before the trial began, lawyers for Mr. Blackmore and Mr. Oler argued the decision by Mr. Peck, as special prosecutor, was final, and that the attorney-general acted improperly in shopping for a different opinion.

Judge Stromberg-Stein agreed.

"The role assigned to a special prosecutor is not simply advisory, or to make recommendations," she states. "Mr. Peck's decision, within the scope of his mandate, was final. … the attorney-general had no jurisdiction … to appoint Mr. Robertson."

The present Attorney-General, Mike de Jong, said the ruling - on a narrow point of law - will make it difficult to fight polygamy in the courts.

"The attorney of the day, Mr. Oppal, was confronted by an important and difficult decision, and that was to try to get a matter that has lingered for some time before the courts," he said. "It's not the result we were hoping for or looking for. It's obviously an impediment to advancing this prosecution."

Mr. Oppal, who was defeated in the past election, was disappointed by the ruling.

"The decision not to follow the advice of the two independent prosecutors was not made lightly; we thought seriously about that," he said.

And Mr. Oppal said he disagrees with the judge's view that an attorney-general is bound by the opinion of a prosecutor.