Google News - The Canadian Press March 25, 2010
Blackmore seeks standing, funding in case that will test Canada's polygamy law
By James Keller (CP)
VANCOUVER, B.C. — Winston Blackmore, one of the spiritual leaders in Bountiful, B.C., who police believe has 19 wives and more than 100 children, will ask a judge on Friday for government funding and special status in a case that will test Canada's polygamy laws.
The provincial government has asked the B.C. Supreme Court to decide whether the federal law against multiple marriages violates the Charter of Rights and Freedoms, one of the only options left after a judge tossed out charges against Blackmore and another leader in Bountiful late last year.
But while Bountiful was the catalyst for the highly anticipated reference case, expected to be heard this fall, observers say the wide array of interveners and the structure of the case ensures the eventual outcome - which will almost certainly include a trip to Canada's highest court - will reach across the country.
"This will be the case that determines it for Canada," said Vancouver lawyer Arthur Grant, who specializes in constitutional law.
"I think it's a high likelihood this will go the whole distance to the Supreme Court of Canada, so in the end there will be a clear decision."
And even if it doesn't head to the Supreme Court of Canada, said Grant, courts in other provinces would give the B.C. decision considerable weight if they ever deal with polygamy cases of their own.
Blackmore and James Oler were charged in January 2009 with one count each of practising polygamy, two decades after police first began looking into Bountiful, whose are members of a fundamentalist offshoot of the Mormon church, which renounced polygamy more than a century ago.
Blackmore was accused of having 19 wives, and Oler three.
The pair successfully challenged those charges, arguing earlier decisions by special prosecutors not to charge them, for fear that the law would be ruled unconstitutional, were final. Rather than appealing, the province launched the reference case.
The case prompted more than a dozen applications from various groups looking to intervene. All have been granted status as interested parties, which will allow them - at their own expense - to present evidence and cross examine some witnesses.
But Blackmore now wants to be included as a full party to the hearings, essentially equal in status to the B.C. government's lawyers. And he wants the province to pay his legal bills.
"The polygamy provisions have as their purpose and effect the unjustifiable infringement of my congregation's and my religious freedom," Blackmore says in an affidavit filed with the court.
"As I anticipate that the Crown and perhaps other interveners may intend to adduce evidence that portrays me and my congregation in a negative light, I will want full right to challenge that evidence including the right to cross examine any and all adverse witnesses."
Other interveners include Oler, children's and women's rights advocates who argue polygamy in communities such as Bountiful constitute abuse, civil liberties groups that claim the current law violates religious freedoms and a group that advocates for people in so-called polyamorous relationships, where consenting adults have multiple partners.
Reference cases are a way for governments to ask the courts to interpret laws and determine their constitutionality. Provincial governments can send reference questions to their supreme or appeal courts, while the federal government refers them to the Supreme Court of Canada.
Perhaps the best known reference case was in the late 1990s, when Ottawa asked the Supreme Court of Canada to rule on Quebec's right to separate unilaterally from Canada. The court concluded it would be illegal, and listed the legal hurdles the province would have to overcome in order to separate that Ottawa then incorporated into the Clarity Act.
Technically, decisions in reference cases are merely opinions for governments to consider. But constitutional law expert Margot Young, who teaches at the University of British Columbia, said they are treated as binding rulings.
"While, historically, the reference procedure has resulted in an advisory opinion, that's the opinion of the court, and if it were a formal case, it would be a same opinion," said Young.
"You've heard what the court thinks the law is and that functions the same way (as a ruling)."
Lorraine Weinrib, who teaches law at the University of Toronto, said the range of interveners will also mean the case won't be entirely focused on Bountiful, even if the community does command the most public attention.
For example, she says the issues that are tangled up in Bountiful, including allegations of abuse and gender inequality, are different from the considerations for consenting adults living in so-called polyamorous relationships.
"The question about how they factor into the Criminal Code provisions and how we approach these less-extreme examples - those involve deep thinking to figure out what the public policy should be and whether the criminal code should apply," said Weinrib.
"So I think it won't be all Bountiful."
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The Vancouver Sun - March 27, 2010
Polygamist leader's funding request has no precedent, just like his unusual case
By Daphne Bramham | Vancouver Sun
If Winston Blackmore and his fundamentalist Mormon congregation in Bountiful don't get equal standing with the attorneys-general of B.C. and Canada as well as funding, they will boycott the reference case that will determine whether the anti-polygamy law is constitutional.
Blackmore's application, heard Friday by Chief Justice Robert Bauman of the B.C. Supreme Court, was pointedly and colloquially summarized by three different lawyers.
Blackmore is a narcissist, who believes the constitutional case is all about him. And he is attempting to hold the province and country hostage, according to the lawyers for B.C. and Canada.
Blackmore is broke and distrustful of authority because he's been persecuted, yet eager to ensure that justice is served and his rights protected. That's from his lawyer, Joe Arvay.
What Blackmore is asking for is unprecedented.
Of course, the whole case is unprecedented. It's the first time a Canadian constitutional reference case has been heard by a trial court.
For Blackmore, who is one of two polygamous leaders in the community of about 1,200 in the province's southeastern corner, the outcome will clearly affect him.
But as the governments' lawyers argue, this case isn't just about Blackmore or Bountiful, or even fundamentalist Mormons.
Others clearly agree because the list of interveners includes the B.C. Civil Liberties Association, REAL Women, West Coast Legal Education and Action Fund, the Catholic Organization for Life, Stop Polygamy in Canada, Beyond Borders and the Canadian Polyamory Advocacy Association.
Only Blackmore is insisting that his participation is dependent on being a full party to the case, which would give him the unfettered right to call evidence, cross-examine witnesses and even appeal the final decision. But that's not all. He wants a government-issued blank cheque in advance.
Without that, Blackmore and his approximately 500 followers refuse to be interveners or to cooperate in any way with George McIntosh, the court-appointed "amicus" hired to oppose the two governments' case that the law is constitutional.
McIntosh supported Blackmore's application Friday, calling it "essential" and bolstering Arvay's claim that without Blackmore's participation, justice will be denied to this group, which has long claimed to be persecuted even though they have flourished for more than 60 years.
Yet the Fundamentalist Church of Jesus Christ of Latter Day Saints and its bishop, James Oler, have signed on as interveners and have hired their own lawyer. The FLDS is the largest polygamous group in North America and its followers comprise more than half of the residents in Bountiful.
So what Bauman has to decide -- he reserved judgment Friday -- is whether Blackmore's participation is more critical to the understanding of the practice of polygamy than all of the others.
He needs to determine whether Blackmore and his congregation deserve to have the stature and standing in this case equal to all other Canadians who are represented by the two governments and the amicus. And whether Blackmore can dictate that their lawyer will be Arvay.
If Bauman does agree to that, he must then determine whether the governments will end up writing a cheque that's been estimated at anywhere from hundreds of thousands of dollars by Arvay to more than a million by Craig Jones of the B.C. attorney-general's ministry.
Arvay argues that Blackmore is "impecunious." In his affidavit, Blackmore states that he has a potential liability of $1.5 million in unpaid personal taxes to Revenue Canada and $2.5 million in unpaid taxes for his company, J.R. Blackmore and Sons.
Blackmore's 2008 tax return shows gross income of $83,220. But even though he says in his affidavit that he has "40 children under 18 who I help to support," his tax return doesn't show any child tax benefits, child-care expenses or support payments.
His affidavit also fails to list the income of his multiple wives because Blackmore has refused to provide income statements for any other members of his family, saying it breaches their privacy.
At one point late in the day, Arvay offered to withdraw his application for federal funding for Blackmore. The federal government's lawyer, Craig Cameron, accepted the offer, then proceeded to outline why Blackmore shouldn't get any funding at all.
Arvay then pulled the offer off the table.
It's a taste of what's to come in this highly unusual case. And the trial date hasn't been set yet.
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