CRANBROOK, B.C. — The lawyer for one of three people with ties to a British Columbia polygamous community says the prosecution has not met the burden of proof that his client intended to remove a 13-year-old girl from Canada for a sexual purpose.
John Gustafson said in closing arguments Tuesday there's reasonable doubt the girl was removed from Canada by Brandon Blackmore and that his client was certain sexual contact with an older man would take place if he did bring her across the border.
He told the court the notion his client ought to have known is not enough and there would have had to be "certainty or substantial certainty."
"There must be actual subjective knowledge," Gustafson told B.C. Supreme Court Justice Paul Pearlman.
Priesthood records found locked away in a Texas ranch and admitted into evidence show that on March 1, 2004, the youth married Warren Jeffs, the now-imprisoned prophet of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, or FLDS.
Jeffs, 60, was convicted in 2011 and sentenced to life in prison plus 20 years in the United States for sexually assaulting two girls he claimed were his "spiritual" wives.
Much of the evidence in the case against Blackmore, Gail Blackmore and James Oler on charges they took girls into the United States for a sexual purpose came about through the U.S. investigation into Jeffs.
The records include transcribed dictations from Jeffs detailing meetings and conversations.
One excerpt from Feb. 27, 2004, shows Jeffs told Brandon Blackmore over the phone a day earlier that the girl "belonged" to him.
Gustafson told Pearlman the dictations should be treated with caution.
He said it's not clear Blackmore took Jeffs' comment to definitively mean marriage — nor that the prophet intended to marry the girl within days.
Gustafson added it's unclear what might have been left out of Jeffs' account of the conversation and Brandon Blackmore's side of the exchange was not included in the transcripts.
Special prosecutor Peter Wilson argued in his closing arguments on Monday that it was not necessary for the prosecution to prove the Blackmores acted with "motive or desire" that sexual activity take place between Jeffs and his young bride, but only that they could foresee that happening as a result of the marriage.
The charge against Oler relates to a 15-year-old girl who priesthood records say was married to James Leroy Johnson in 2004.
Oler and Gail Blackmore are representing themselves in the judge-alone trial and they told Pearlman they do not intend to make any submissions. Both spent much of this week bowed over reading — he from a tablet device and she from what appears to be a religious text — although Oler did pay more attention to the court proceedings on Tuesday.
Lawyer Joe Doyle, who has served as amicus curiae or impartial adviser in the case, told the judge he will make brief submissions on Wednesday.
Gail and Brandon Blackmore are separated as husband and wife and Wilson has described her as a willing participant in the alleged offence.
Much of Wilson's case has focused on beliefs around sex and marriage in the FLDS church — specifically that women were to be subservient to their husbands, bear as many children as possible and that marriages were to be consummated as quickly as possible after the ceremony.
Wilson told the court Monday that border records from late February 2004 show the Blackmores and another woman crossed into Idaho, but the 13-year-old girl was "conspicuously absent."
The prosecutor said the girl must have crossed the border somehow because days after the Blackmores were given orders by Jeffs, priesthood records show the polygamous leader married the teen.
Gustafson said that raises doubts around his client's involvement.
"We have the phone call. We have the wedding," said Gustafson. "We don't have what happened in between."
Gustafson argued the intent to remove the youth needed to be formed in Canada and not in the United States.
He said there's no evidence his client knew the girl was to be married imminently until after he had travelled to the FLDS community known as Short Creek on the Arizona-Utah border.
Lauren Krugel, The Canadian Press