2 Dec 2010

Judge rules Canadian constitutional case on polygamy can proceed without participation of Mormon fundamentalist leader

Vancouver Sun - April 20, 2010

Blackmore welcome, but reference case on anti-polygamy law can go ahead without him

By Daphne Bramham | Vancouver Sun


The participation of Winston Blackmore, Canada's most notorious polygamist, would be welcome in the reference case on the anti-polygamy law's constitutionality, but the chief justice of the B.C. Supreme Court said Tuesday that it's not necessary.

In a written decision, Robert Bauman said that not only is Winston Blackmore's participation and that of his 500 or so followers from the community of Bountiful, B.C. not necessary, there is no reason for taxpayers to pay their legal costs of participating in the reference case.

Blackmore was one of two men charged in January 2009 with practising polygamy, which has been a criminal offense since 1890. The charges were later quashed on a technicality and rather than appealing that decision, Attorney General Mike de Jong decided to refer two questions to the B.C. Supreme Court. The action was joined by the federal Justice Department.

Those two questions are: Is the anti-polygamy law consistent with the Charter of Rights and Freedoms? And, does the prohibition on polygamy require the involvement of a minor, exploitation, abuse of authority, a gross imbalance of power or undue influence?

So far, 12 interested parties have been accepted as participants in the case which is likely to go to trial in mid-November. Among the parties is Jim Oler, the other man charged in 2009 with polygamy. He is the bishop for the Fundamentalist Church of Jesus Christ of Latter Day Saints in Bountiful.

In his judgment, Bauman said while Blackmore's participation "would help in developing the record which will assist the court in answering the questions in the reference, but that participation is not 'necessary' . . . any more than is the participation of the [12 other] interested persons."

The chief justice noted, "No proceedings are extant against Mr. Blackmore. He may possibly face a prosecution under s.293 of the Criminal Code in the future, but that is pure speculation."

Bauman went on to say that while the outcome "may possibly, but not necessarily, affect Mr. Blackmore and his followers in future," that is not enough to grant them party status equal to the federal and provincial governments and to the court-appointed amicus who will argue that the law is invalid.

He also noted that Blackmore has filed a civil suit against the province for damages arising from the failed prosecution. Adding Blackmore to this case, Bauman wrote "would transform a reference case, which is not an adversarial proceeding . . . into just that."

However, if Blackmore and his congregation wish to be given status as interested parties, Bauman said he would grant that.

As for advancing Blackmore's legal costs, which were estimated to be $1 million or more, Bauman described it as an extraordinary request with no legal precedents.

The chief justice noted that the test for advance funding is a determination that an injustice would occur without that party's participation. He rejected that in Blackmore's case.

And while Blackmore had provided "fairly significant disclosure of his personal financial situation," Bauman said there was no evidence that the congregation was unable to raise the money.

This article was found at:

http://www.vancouversun.com/life/Blackmore+welcome+reference+case+anti+polygamy+ahead+without/2929926/story.html

********************************************************************************

Vancouver Sun - April 21, 2010

Blackmore may be absent at polygamy court case, judge says

By Daphne Bramham | Vancouver Sun


What Canada's most notorious polygamist has to say about the practice might be interesting, but Chief Justice Robert Bauman of the B.C. Supreme Court says his participation is not necessary in determining whether the current anti-polygamy law is constitutional.

In a written decision released Tuesday, Bauman said Winston Blackmore's taking part might be helpful and even welcome, but it's not essential.

And what that means is that Blackmore and his 500 or so followers may be absent from the courtroom next November, when it's expected the reference case will go to trial.

Blackmore has threatened to boycott the trial and order his congregation not to participate unless they were granted equal standing with the provincial and federal governments and given a blank cheque for legal fees.

(That blank cheque was conservatively estimated to be worth $1 million or more, if Bauman had agreed to sign it.)

It will seem odd if the case does go ahead without the man who has brazenly held a polygamy summit, inviting politicians, journalists and documentary filmmakers into his home to meet his wives and more than 100 children.

Because there's no doubt that Blackmore and Bountiful are the genesis of this constitutional reference.

In January 2009, five years after RCMP began investigating the community of about 1,000 people, Blackmore was arrested and charged with one count of polygamy. Nineteen women were named on his indictment.

Blackmore is the spiritual leader to about half the community.

James Oler was also charged with one count of polygamy, with three women listed on his indictment. Oler is the bishop of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), who replaced Blackmore in that role following his excommunication.

The charges against both men were quashed on a technicality. Rather than appealing that decision, Attorney-General Mike de Jong decided to refer two questions to the B.C. Supreme Court. The action was joined by the federal Justice Department.

Those two questions are: Is the anti-polygamy law consistent with the Charter of Rights and Freedoms? And, does the prohibition on polygamy require the involvement of a minor, exploitation, abuse of authority, a gross imbalance of power or undue influence?

But Bauman said Blackmore is not the "target" of the proceedings and has no greater interest in the case than the dozen other groups that have been accepted as interested parties.

"No proceedings are extant against Mr. Blackmore," the chief justice noted. "He may possibly face a prosecution under [Section] 293 of the Criminal Code in the future, but that is pure speculation."

And while the outcome "may possibly, but not necessarily, affect Mr. Blackmore and his followers in future," Bauman said, it's not enough to grant them equal status to the federal and provincial governments or to the court-appointed amicus, who will argue against government lawyers that the law is invalid.

Blackmore has filed a civil suit against the provincial government claiming damages for wrongful prosecution. Among his arguments in that case is that the law is unconstitutional, which is why Blackmore's lawyer, Joe Arvay, suggested rolling that part into the reference case.

Bauman rejected that, saying it would "transform a reference, which is not an adversarial proceeding ... into just that."

The constitutional issues go far beyond the little community in southeastern British Columbia, as is evidenced by the disparate groups already accepted as "interested parties": REAL Women, the Canadian Polyamorist Advocacy Association, children's-and women's-rights advocates and civil libertarians.

And despite his threatened boycott, it seems unlikely that Blackmore will stay away. Not only has he embraced the limelight in the past, he will probably not want to leave his fate -- and that of his congregation -- to the FLDS to defend. There's too much enmity between them.

But Blackmore might stay away.

He claims to be broke, although Bauman said Blackmore didn't prove that with the affidavit he filed.

Blackmore claims his congregation can't pay for a lawyer to represent them, which Bauman said was never proven.

And there's one other thing.

If Blackmore doesn't show up and the law is found to be constitutional, he can always blame his enemies, securing for himself the role of martyr.


This article was found at:

http://www.vancouversun.com/life/Blackmore+absent+polygamy+court+case+judge+says/2933024/story.html

*********************************************************************************
The Globe and Mail - The Canadian Press April 28, 2010

Winston Blackmore will not participate in polygamy hearing

Winston Blackmore, the religious leader of the polygamous community of Bountiful located near Creston, B.C., shares a laugh with six of his daughters and some of his grandchildren in an April, 2008 file photo.

Lawyer says his client can’t afford to take part


Admitted polygamist Winston Blackmore won't participate in a British Columbia court case testing Canada's law against polygamy, says his lawyer.

Mr. Blackmore, one of the leaders of the controversial community of Bountiful, B.C., can't afford to take part after a judge refused his request for hundreds of thousands of dollars in government money, Joseph Arvay said in an interview Wednesday.

“Unless he wins the lottery or some other source of funds comes his way, he will not be participating,” Mr. Arvay said.

“His involvement and participation in the reference would require a huge amount more legal services than one of the many varied interveners. It's going to be a very expensive hearing, and [Mr.] Blackmore can't afford it.”

Mr. Blackmore had asked the province's Supreme Court for special status and funding to take part in the case, expected to be heard in the fall.

Last week, the judge denied the application, ruling that he can have no greater role than other interveners and would have to pay his own way.

Mr. Blackmore and James Oler, the leader of a separate faction within Bountiful, were charged early last year with practising polygamy in a case that has dogged the B.C. government and RCMP for decades.

A judge later quashed the charges because the province had appointed a second special prosecutor after the first recommended against laying charges.

Rather than appealing that decision, the B.C. government asked the court to decide whether Canada's polygamy laws violate religious protections guaranteed in the Charter of Rights and Freedoms.

Mr. Arvay had argued that the reference case will effectively put Bountiful on trial, despite the province's insistence that it would be a broad examination of the Criminal Code section that prohibits multiple marriages.

“I think it's quite ridiculous to think you can have a reference on polygamy, which came to pass all because of Bountiful, and yet the court isn't going to hear evidence from the people of Bountiful,” said Mr. Arvay.

“Yes, it's nice that he's been invited to participate, but unless he can afford to participate, that invitation rings rather hollow to him.”

There are more than a dozen interveners set to participate in the reference case, including Mr. Oler.

The groups that have applied to be involved range from religious organizations to one that advocates for people in consensual relationships with multiple partners, a practice they call polyamory.

Observers have said the case, while technically not binding on the government, will likely end up before the Supreme Court of Canada and will ultimately decide whether polygamy is a crime in Canada.

Mr. Blackmore and Mr. Oler were arrested in January 2009 after two decades of police investigations and prosecutors who repeatedly shied away from laying charges.

Mr. Blackmore was accused of having 19 wives, and Mr. Oler three.

Residents of Bountiful are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway group from the mainstream Mormon church. The Mormon church renounced polygamy more than a century ago.


This article was found at:

http://www.theglobeandmail.com/news/national/british-columbia/winston-blackmore-will-not-participate-in-polygamy-hearing/article1549761/

RELATED ARTICLES:


Mormon polygamist leader seeking government blank cheque for constitutional case already owes Canadian taxpayers millions






Canadian Mormon fundamentalist leader threatens to boycott constitutional case on polygamy if demands for full status and legal costs not met


Tax court documents show polygamist who wants gov't to fund defence was manipulating tax system


Canadian polygamist fights in tax court - wants tax payers to fund polygamy defence


Mormon polygamist suing B.C. gov't for malicious prosecution brought it on himself by publicly flouting Criminal Code


Mormon fundamentalist leader rejects lesser status, seeks "full party" status in Canadian constitutional case on polygamy


Mormon polygamist sues B.C. government for malicious prosecution, claims mental distress & public embarrassment


Canadian Mormon polygamist at centre of constitutional challenge predicts doom for opponents


Accused polygamist had nine underage brides: affadavit

No comments:

Post a Comment

Post a Comment