B.C. polygamist James Oler should not have been cleared of allegations that he took his daughter to the U.S. to marry her off, the BC Court of Appeal has heard.
Special prosecutor Peter Wilson argued Thursday that the trial judge had erred in ruling there was no evidence that Oler had intended and acted to take his 15-year-old daughter to Nevada while he remained in Canada.
It had been alleged that Oler, along with Brandon James Blackmore and Emily Ruth Gail Blackmore, took their daughters out of the polygamous community of Bountiful in southeastern B.C. to the U.S., and then married them to Fundamentalist Church of Jesus Christ of Latter-Day Saints members in 2004 when both girls were underage.
Oler was acquitted in February 2017, while the Blackmores were found guilty and sentenced to jail time. Emily Blackmore is currently .
Wilson鈥檚 argument centres on a jurisdictional issue: that the trial judge had wrongly interpreted the child trafficking statute under which Oler was charged as requiring both the child, and accused, to be in Canada at the time of the crime.
鈥淭he consequence of the error is significant,鈥� Wilson said. 鈥淏ut for the error, I suggest that Mr. Oler would have been convicted.鈥�
He argued the judge had agreed Oler understood that taking his daughter to the U.S. would mean she would have sex with her new husband.
The judge also acknowledged such a marriage would place the girl in a position of 鈥渄ependence鈥� on her new spouse, he said.
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The subsection of criminal code under which Oler was charged says the accused鈥檚 actions to remove a child from Canada must facilitate sexual interference or sexual touching.
鈥淭here is no express language in the provision that dictates that the accused must be physically located in Canada while doing the event,鈥� said Wilson.
Further, Wilson said the trial judge did not stay true to how Parliament intended the law to be followed.
He pointed to the broader-than-usual language in the Criminal Code, which prohibits 鈥渄oing anything鈥� to take a child from the country in order to commit a crime against them.
鈥淚 say it鈥檚 a strong signal that Parliament intended this offence to create an expansive prohibition against any activity that contributed to the sexual abuse of a Canadian child outside of Canada, irrespective of where the accused was at the time,鈥� said Wilson.
Joe Doyle, a 鈥渇riend of the court鈥� who acted as a counterbalance to the prosecution but cannot offer legal advice or strategy, argued there was no proof that Oler鈥檚 daughter was in Canada when Oler received instruction to take her to Nevada.
Doyle criticized a woman formerly of Bountiful, who cannot be named, who testified as to Oler鈥檚 daughter鈥檚 time in that community, saying she only gave a 鈥渧ery broad statement that they went to school together for a long time.鈥�
He challenged school records read out in court, saying the last records to show Oler鈥檚 daughter living in Bountiful were collected in February, with nothing to show that she was there in June leading up to the wedding.
鈥淗er whereabouts at the time were entirely circumstantial,鈥� said Doyle. 鈥淭here鈥檚 no record of Oler and [his daughter] crossing the border鈥� anytime in June.
Wilson argued the woman had testified that she and others had met up with Oler and his daughter at a 鈥渃oncealed place just below the border鈥� when travelling from Bountiful to the U.S.
鈥淭here鈥檚 no evidence that Oler was anywhere other than Canada. There鈥檚 no evidence that [Oler鈥檚 daughter] was anywhere other than Canada,鈥� said Wilson.
The panel of judges reserved judgement.
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