28 Dec 2010

Judge will allow anonymous testimony from Mormon polygamists in Canadian constitutional case on polygamy

The Province - B.C., Canada September 24, 2010

B.C. judge allows witnesses to remain anonymous at polygamy hearings


B.C.’s top trial judge has ordered a publication ban on the identities of polygamists who might testify at a hearing to determine the constitutionality of Canada’s polygamy laws.

B.C. Supreme Court Chief Justice Robert Bauman found that it was necessary to impose the order to allow the case to proceed with a “complete record and full argument on all sides.”

The applicant, the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) and its bishop, James Oler, argued that requiring the witnesses to be identified would put them in jeopardy of being criminally prosecuted if the law is upheld.

Lawyers for the B.C. and Canadian governments argued against an anonymity order. George Macintosh, a lawyer appointed as amicus, or friend of the court, supported the application, arguing the witnesses were needed for the hearing.

The judge found the risk of harm to the continuation of the case was not the possibility for prosecution for criminal conduct if the witnesses testify without an anonymity order.

“That concern is quite beside the mark,” he said in a ruling released Friday. “The fact is that in all likelihood if the order does not go, the proposed witnesses will not testify.

“The order is needed so as to ensure that the evidence of these witnesses is before the court. And that evidence is necessary for the court to conclude the reference.”

The judge ruled that if a witness tenders evidence by affidavit, the witness may elect not to include his or her name or identifying details and the witness may use a pseudonym.

He also found that if a witness is cross-examined on an affidavit or gives evidence in open court, questions that would reveal his or her identity would not be allowed. Furthermore, a witness may elect to give evidence from behind a screen and use a pseudonym.

Oler and Winston Blackmore, also a bishop of FLDS in the community of Bountiful near Creston, were charged with polygamy but had their charges stayed after a judicial review of the charge-approval process.

FLDS is a denomination of the Mormon faith which engages in the practice of multiple marriages.

The trial on the constitutionality issue is expected to get under way in B.C. Supreme Court in Vancouver in November.

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