VANCOUVER — The British Columbia Court of Appeal has ordered a new trial for the former leader of a religious sect who was acquitted of taking a 15-year-old girl across the U.S. border for a sexual purpose.
The Crown appealed the verdict in the case of James Oler, the former leader of a Fundamentalist Church of Jesus Christ of Latter-day Saints community in Bountiful, B.C., which practises polygamy.
A B.C. Supreme Court judge acquitted Oler last year because he was not convinced Oler did anything within Canada's borders to arrange the girl's transfer to the U.S. to marry a member of the sect.
There was no evidence confirming Oler's location when he received a phone call from church president Warren Jeffs in 2004 asking him to bring the girl to the U.S., and no record of either Oler or the teenager crossing the border.
But special prosecutor Peter Wilson told the Appeal Court that proof of wrongdoing inside Canada was not necessary for a conviction.
The law against removing children for a sexual purpose is designed to protect youth who are taken to another country and subjected to an offence that would be a crime under Canadian law, he argued, and it therefore applies to Oler's alleged actions in the U.S.
The Appeal Court agreed and in a written decision released Tuesday said the trial judge erred.
"It cannot be said that it would offend international comity for the Canadian criminal law to redress the harm of removing an ordinarily resident child from Canada for the purpose of activity that would be an offence in Canada," wrote Justice Mary Saunders on behalf of a three-judge panel.
"Canada has a compelling interest in protecting this vulnerable subset of the public, even if the accused was not on Canadian soil when the child was removed."
However, Saunders wrote the law does require evidence that the child was in Canada when the accused arranged to have her removed.
The trial judge didn't express a conclusion as to the girl's whereabouts when Oler allegedly made the arrangements, but he did note the fact that she was "ordinarily resident" in Canada does not prove she was in Canada at the time.
Saunders wrote that there was circumstantial evidence that might have shed light on the girl's location, but the trial judge didn't explore it.
For that reason, she concluded that the Appeal Court could not simply substitute a guilty verdict for Oler's acquittal and instead must order a new trial.
Oler did not have a lawyer at either the trial or the appeal hearing, so the court appointed an impartial adviser to assist the court and provide balance.
The 54-year-old was excommunicated from the church around 2012 and now lives in Alberta.
He was convicted of polygamy in a separate case and sentenced in June to three months' house arrest, plus community service and probation, for having five wives.
Also on Tuesday, the court denied an appeal from Gail Blackmore, also known as Emily, who was convicted of taking a 13-year-old girl across the border to marry a member of the sect.
Her husband Brandon Blackmore was also convicted of the crime.
Gail's lawyer argued her husband likely didn't tell her the reason for the rushed trip to the U.S. with the teenage girl, as wives are expected to obey husbands without question in the church.
The lawyer argued the judge determined Gail helped her husband move the girl based on an incorrect interpretation of circumstantial evidence.
But the Appeal Court dismissed the appeal, saying the judge's conclusion was reasonable.
"The trip was hurried, that is, taken on short notice, and it was not insignificant in distance travelled or duration. These features invite the reasonable inference of an explanatory conversation between (husband and wife)," wrote Saunders.
She added that it's not an answer to the charge for Gail to say "anything I did, I did because I was obedient."
The identities of the two girls, who are now adults, are protected by a publication ban.
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Laura Kane, The Canadian Press