Province may consider appeal against the ruling
B.C. Supreme Court Judge Sunni Stromberg-Stein made the ruling Wednesday in B.C. Supreme Court, said Neil MacKenzie, a Crown spokesman.
Blackmore, 52, and Oler, 44, were charged in January with one count each of practising polygamy, charges that were recommended by special prosecutor Terry Robertson — the third outside counsel hired by the attorney-general’s ministry to review evidence gathered during a two-year RCMP investigation.
The two previous lawyers had recommended that the anti-polygamy section of the Criminal Code be referred to the B.C. Court of Appeal to determine whether it breaches the constitutional guarantees of religious freedom.
Attorney-General Mike de Jong says the province will consider an appeal of a B.C. Supreme Court ruling that threw out the case against two Kootenay community leaders accused of having multiple wives.
Lawyers for Winston Blackmore and James Oler asked the court to throw out a single count of polygamy laid against each of them earlier this year, and on Wednesday a judge agreed. Former attorney-general Wally Oppal did not have authority to appoint a second special prosecutor to the decades-long case after the first one declined to proceed, Justice Sunni Stromberg-Stein ruled.
Oppal championed the use of a little-used section of the Criminal Code to prosecute the two men, rival leaders of a breakaway fundamentalist sect of the Mormon church who led a community in Bountiful.
The law has seldom been used, and never since the Charter of Rights and Freedoms was adopted.
At issue is whether the polygamy law would withstand a Charter of Rights challenge based on freedom of religion.
More about the Bountiful, B.C. community, and about the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) it is affiliated with.