29 Oct 2010

Battle over legal costs could derail B.C. polygamy case

The Vancouver Sun - May 25, 2009
Winston Blackmore wants funding without making financial disclosures

by Daphne Bramham | Vancouver Sun

Winston Blackmore and James Oler -- the two B.C. men charged with a single count each of practising polygamy -- both pleaded not guilty and elected trial by judge and jury.

Both men are fundamentalist Mormon leaders from Bountiful who believe that a man needs multiple wives to enter the highest realm of heaven.

Their beliefs diverged from the mainstream Mormon church in 1890 when the Church of Jesus Christ of Latter-day Saints renounced the practice of polygamy.

The next stage is a preliminary inquiry in Cranbrook. A date has yet to be set, but special prosecutor Terry Robertson expects it will be in late fall and could take up to 20 days.

However, the whole process could still be derailed by Blackmore's unusual application to the B.C. Supreme Court that will be heard June 29 and 30.

Justice Sunni Stromberg-Stein has been asked to either: stay the criminal charge because of what Blackmore's lawyer Joe Arvay says has been an abuse of process; or stay the charge unless the provincial government agrees to pay the legal costs for Blackmore's team of lawyers at the same rate that Robertson and his team are being paid.

For the first part, Arvay will argue that Attorney-General Wally Oppal interfered because he went against the recommendations of his ministry staff, legal opinions given by two retired and respected judges more than a decade ago, and more recent opinions given by two special prosecutors.

But what's unusual is the second option. Arvay is asking that Blackmore get government funding without making any financial disclosures.

If Stromberg-Stein agrees to order the government to pay Blackmore's legal costs, it would set a precedent for all future funding for impecunious defendants.

Currently defendants have only two means of getting public funding. One is legal aid, which rejected Blackmore's application. The other is by making a Rowbotham application to a judge who decides based on extensive disclosure and examination of the applicant's finances.

Arvay will argue that no individual should have to bear the cost of a constitutional test case that has broad public implications.

Blackmore put it more plainly on his blog: "Just suppose that some foreign force attacked our Canada and sent in their army to destroy it, would you think it prudent, wise or fair, for the government of Canada to call on one farmer from out west to defend the nation with proceeds from his grain crop?"

Arvay is right to argue that this is an important case with implications far beyond either his client's or Oler's interests since it could reset the legal limits of tolerance toward religious practices.

There can also be no argument that for justice to be served, it shouldn't only be the Crown's interests that are represented by the best lawyers.

But if Stromberg-Stein orders the province to pay Blackmore's costs, it would mean that taxpayers would then be on the hook for the full legal costs in any trial with constitutional implications, regardless of a defendant's ability of defendants to pay.

(First in line would be Oler. His lawyer Robert Wickett has not yet joined in Arvay's application, but if it's successful, Wickett said Friday it would be in his client's best interest to file a separate, similar application.)

I'm not sure that what Arvay is asking for is reasonable, especially since there are other complex or worthy cases of broad public interest that aren't eligible for public funds.

My colleague Ian Mulgrew, for example, wrote in January how we may never know what happened aboard the BC Ferry that sank, killing two people, because the victims can't afford the exorbitant court fees. He quoted lawyer Peter Ritchie saying, "Unless you are wealthy in B.C., you cannot go to court."

Still, you can't blame Blackmore and Arvay for trying to avoid making a Rowbotham application. These are complex at the best of times. But just as a start, to determine the household income of a family with many wives (some of whom work), Blackmore would have to list them all, and that could mean more names added to the indictment.

They'd have to deal with another very sticky issue. In Bountiful, most of the property is held communally. But Blackmore is the president and/or director of several companies.

Are they his companies or the community's?

Revenue Canada is currently battling Blackmore over some of those issues. The next hearing on Blackmore's case in the Tax Court is scheduled for only a few days before Stromberg-Stein hears the application.

No wonder Blackmore would rather not have to deal with sticky financial issues twice.

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