Emily Ruth Gail Blackmore’s lawyer told the three-judge panel at the BC Court of Appeal that she had not known why her daughter was being taken across the border in 2004, and so shouldn’t have been convicted.
Blackmore, along with husband Brandon James Blackmore, is part of a polygamous sect in Bountiful in southeastern B.C.
They were found guilty last year of removing their daughter from Canada under a criminal code subsection that the removal would facilitate sexual interference or sexual touching. Emily Blackmore was sentenced to seven months in jail, while her husband received a one-year term.
She was not present in court for her appeal on Wednesday.
Lawyer Greg DelBigio argued the lower court judge had made a “leap of faith” in assuming Blackmore both knew and helped her husband take their underage daughter over the border to marry her off.
The daughter, whose name is covered under a publication ban, was eventually wed to Warren Jeffs, the leader of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, in a March 2004 ceremony.
DelBigio acknowledged such a marriage was expected to lead to sexual relations with the underage girl.
But he said Blackmore would not have thought to question her husband when told they were going to the United States, as is custom in their fundamentalist community.
“Evidence showed that there are distinct rules between husbands and wives within that community. It’s not a relationship that is based upon equality,” DelBigio said.
“Evidence shows that men dictate what will go on and women follow without question.”
Blackmore attending her daughter’s wedding was not enough proof to convict her, he added, as she needed to know about her husband’s plan, as well as aid and abet it, in Canada.
However, Crown argued: “Subservience shouldn’t be equated with silence.”
Lawyer Micah Rankin told the court neither the Blackmores’ fundamentalist sect, nor their own beliefs within the family, supported the notion that Brandon Blackmore would not tell his wife about plans to marry off their daughter.
Rankin pointed to prior testimony from the couple’s son that Brandon Blackmore held more egalitarian beliefs about men and women.
“There was some evidence that in this particular relationship between Emily Ruth Gail Blackmore and Brandon James Blackmore that things weren’t quite as hierarchical as things might appear to be,” Rankin said.
He also pointed to Brandon Blackmore asking another of his daughters, a 16-year-old, if she wanted to get married.
Further, Rankin argued the speed with which the family departed for the U.S., following a phone call between the husband and Jeffs, meant that Emily Blackmore couldn’t help but understand the importance of the occasion.
“They drop everything, they leave home on a 19-hour journey… and they do so in a context that’s very auspicious in their religion,” said Rankin.
“It’s like [the daughter] is being married to the Pope. More than the Pope. This was clearly a very significant event. [Jeffs] is the highest authority of God on Earth, in the view of the FLDS.”
Much of DelBigio’s argument centered around the fact that even had Blackmore been in the car with her daughter and husband as they drove to Texas, that was not enough to prove both the intent and action necessary for the mother’s conviction.
But Rankin said that the broad language under which Blackmore was found guilty could encompass even standing by and not interfering, as well as aiding and abetting.
The section of the Criminal Code under which Blackmore was convicted prohibits “doing anything” to take a Canadian from the country in order to commit a crime against them. The crimes in this case are sexual offences against a child under 14 years old.
In addition, Rankin said that as a parent, Blackmore was held to a higher legal standard to protect her child.
“[Emily Blackmore] could not just sit by if she knew that her husband were taking her 13-year-old daughter to be married to a man in his late 40s in the United States, and do nothing,” said Rankin.
“Parents can’t do that with their children. They can’t fail to take steps to protect them including against other parents.”
The appeals court reserved judgement.
A special prosecutor’s appeal of the acquittal of James Oler, another Bountiful man who was cleared of unlawfully removing his daughter from Canada last fall, was set to begin Thursday.