Bountiful leader Winston Blackmore didn't get 'fair notice' polygamy is illegal, argues lawyer

A polygamy charge against the leader of Bountiful,afundamentalist breakaway commune in southeastern BritishColumbia is unfair and should be thrown out because he wasn't given"fair notice," a court has heard.

Winston Blackmore's lawyer Joe Arvay argued in B.C. Supreme Courton Monday that the provincial government doesn't have the right tocriminally charge his client or any resident of the commune for historical acts of polygamy.

• Bountiful sect members face polygamy, child-related charges

The cutoff point, said Arvay, should be a 2011 reference questionthat concluded polygamy laws did not violate the Charter of Rights and Freedoms. That decision provided constitutional clarity toCanadians involved in the controversial practice.

"The whole point of having a reference (case) was to givethose people fair notice that their conduct was lawful orunlawful," Arvay said.

"It would be unfair to the people of Bountiful to prosecute themfor conduct that they were led to believe by many people inauthoritywas lawful."

Blackmore is one of the heads of Bountiful, B.C. a remotefundamentalist community whose name has become synonymous in Canadawith the practice of polygamy.

Arvay told the court that Blackmore's 25 alleged marriages tookplace between 1975 and 2001, predating the reference question by adecade.

Blackmore sat quietly in court Monday watching the proceedings.His shock of white hair, neatly combed back, contrasted his sharpblack suit. He held a ball cap in his lap emblazoned with the nameof his family business: J. R. Blackmore & Sons Ltd.

'Shopping' for a prosecutor

Arvay also argued that Blackmore's polygamy charge should bequashed because the government acted improperly by appointingsuccessive prosecutors until it got the recommendation it wanted.

"This is yet another case of, to use the vernacular, 'shopping'for a prosecutor to do something the first prosecutor wouldn't do,"said Arvay.

In 2007, special prosecutor Richard Peck concluded that polygamywas the root cause of Bountiful's alleged issues. But rather thanrecommend charges he suggested a constitutional question be referredto the courts to provide more legal clarity.

Instead, the province opted to appoint a succession of otherprosecutors until one eventually recommended taking legal action in2009.

• B.C. religious leaders charged with polygamy

Those charges were thrown out later that year, after Arvaysuccessfully argued the province had acted improperly. The provinceanswered by posing a reference question to the B.C. Supreme Court onthe constitutionality of polygamy.

• Polygamy charges in Bountiful, B.C., thrown out

The Crown was expected to present its case later Monday, arguingthat circumstances have changed since Peck's recommendations and inthe lead up to the appointment of special prosecutor Peter Wilson in2012.

New evidence has come to light following a police raid on a Texasfundamentalist ranch in 2008, and the legal grey area surroundingpolygamy has been resolved in the interim with the 2011 referencequestion, the Crown is expected to say.

None of the allegations has been proven in court.