Fundamentalist Mormon leader Winston Blackmore took to the stand in Cranbrook Supreme Court, testifying that he believed he was entitled to practice polygamy because RCMP never charged him with the offence after an investigation in the early 1990s.

Blackmore, who filed a notice to launch a charter challenge after being found guilty of practicing polygamy in July, is seeking a stay of the proceedings, an exemption from prosecution based on his religious beliefs, and alternatively 鈥� if convicted 鈥� an absolute discharge.

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After he was first detained by RCMP in 1990 who were investigating polygamy allegations, he says he was released pending a decision from the Attorney General, who decided not to purse a prosecution.

鈥淚 was relieved to learn that the Attorney General had concluded that my religious rights were protected under the Canadian Charter of Rights and Freedoms,鈥� writes Blackmore in an affidavit filed with his charter notice of application. 鈥淚 relied on that in proceeding with the blessings (marriages) performed after that.鈥�

Winston Blackmore on the witness stand testifying about the material in the affidavit filed for his charter challenge.

鈥� Trevor Crawley (@tcrawls)

In his application, Blackmore argues his charter rights were violated, including right to religious freedom, right to fair trial and the right not to be found guilty on account of any act or omission unless, at the time of the act or omission, in constituted an offence.

In 2011, a constitutional reference case ruled that Section 293 of the Canadian Criminal Code, which defines polygamy, is constitutionally valid. However, Blackmore is arguing that polygamous marriages occurring before the decision should not be prosecuted, as it was not legally and constitutionally clear whether it was a crime.

Special prosecutor Peter Wilson called Blackmore to the stand to cross-examine him on the material in his affidavit as well as testimony given during a trial in an Utah court in a civil trial where he talks about the ages of his wives and the legality of the marriages.

In British Columbia, a person must be 19 years or older to marry, but anyone under that age must have written consent of both parents. Marriages of a person under 16-years-old can occur with both parental consent and a court order.

Wilson and Blackmore went back and forth during testimony as the prosecutor noted that Blackmore had married nine women who were under 19, two of which were 15 at the time of the ceremony. After questioning from Wilson, Blackmore admitted he had parental consent for all the marriages, but not in writing.

Blackmore said he never applied to have the marriages solemnized in court because he didn鈥檛 think 鈥榓nyone would have given them the time of day.鈥�

That鈥檚 because the marriages were unlawful, Wilson countered.

鈥淚sn鈥檛 that why the Mormons fled across the US to Utah?鈥� asked Wilson. 鈥淚sn鈥檛 that why Mormons left Utah to go to Cardston? And isn鈥檛 that why Mormons settled in Bountiful, because you鈥檙e being hounded by authorities who said that plural marriage is unlawful?鈥�

Blackmore answered by saying as far as he knew, plural marriage, or polygamy, is legal and and lawful in the sight of God.

鈥淚鈥檓 aware that in our country today, any man can associate with however many women he wants,鈥� said Blackmore, 鈥渁ny woman can have as many men in her life as she wants, any man can have as many men in his life as he wants, and they can freely associate in any sort of capacity, sexual or other. I am aware the charter guarantees their right. And all I鈥檓 asking, My Lady, is that this charter grants us the same protection as it grants other citizens of Canada.鈥�

However, Wilson suggested that Blackmore knows the marriages aren鈥檛 legal, lawful and proper in the eyes of the Government of Canada.

鈥淔air statement?鈥� asked Wilson.

鈥淔air statement,鈥� Blackmore answered.

Much of Blackmore鈥檚 arguments on the constitutional issue centre around allegations of 鈥榮pecial prosecutor shopping鈥� after the Attorney General and a string of special prosecutors declined to pursue polygamy charges from 1990 up to 2009.

Richard Peck, the first special prosecutor appointed in 2007, declined to approve polygamy charges, concluding that he believed it would fail based on the defence of religious freedom.

A second prosecutor, Leonard Doust came to the same conclusions as Peck and recommended a reference case to test the constitutionality of Section 293.

A third special prosecutor, Terry Robertson was appointed in 2008, who disagreed with his predecessors and approved polygamy charges, however, his appointment was successfully thrown out of court after a challenge from Blackmore.

A reference case was ordered, with a lengthly ruling that upheld the constitutionality of Section 293, that prosecuting polygamy does not violate an individual鈥檚 constitutional rights because the harms associated with polygamy outweigh the individual right to freedom.

That paved the way for Wilson鈥檚 appointment in 2012, who approved the polygamy charge against Blackmore and James Marion Oler in 2014.