The Vancouver Sun - Canada September 2, 2010
Polygamists will stand up for their beliefs -- but only to a point
by Daphne Bramham | Vancouver Sun
Brace yourself. It's still months from trial, but the constitutional reference to determine whether Canada's anti-polygamy law is valid is about to hit the first bump in the road.
The Fundamentalist Church of Jesus Christ of Latter Day Saints and its B.C. bishop, James Oler, want immunity from future criminal prosecution.
Oh, not just immunity here; in the United States as well.
They want to testify anonymously, using pseudonyms or hidden behind screens, and they don't want to answer incriminating questions.
The motion was filed Wednesday by their lawyer Robert Wickett and is scheduled to be heard Sept. 8 by B.C. Supreme Court Chief Justice Robert Bauman.
The motion asks that the FLDS "be at liberty to tender evidence ... without disclosing the identity of their witnesses or any information which might tend to identify their witnesses, spouses or immediate family members."
It argues that the witness testimony is essential because without it, the FLDS can't provide details of religious beliefs, cultural underpinnings and polygamous life experiences.
Additionally, "[The] applicants will have no direct evidentiary basis to challenge the 'harms' alleged by the Crown to result from polygamous relationships."
The FLDS has an estimated 10,000 members, 400 of whom live in Bountiful, B.C.
The motion says its members fear future prosecution, a fear "grounded in reality as the Crown has declined to offer an assurance to the contrary."
Oler's supporting affidavit says he "expects" the Crown will attempt to resurrect charges against him if the law is found to be constitutionally valid.
"I am not willing to give up my rights to remain silent and to provide evidence," he says.
However, Oler says he would provide evidence "anonymously and with the assurance that I will not be required to answer questions that may incriminate me or that may compel me to identify other persons who might be engaging in plural marriage."
According to the motion, "American witnesses fear that if they proffer evidence under oath ... such evidence (either affidavit or transcript) will be delivered to U.S. authorities and used to prosecute them, their spouse or father or brother, as the case may be, for polygamy or bigamy contrary to various state laws."
Utah, Arizona and Texas have all recently prosecuted FLDS members.
(Coincidentally, Texas lawyers will be in a Salt Lake City courtroom seeking the extradition of jailed FLDS prophet Warren Jeffs, who is charged with aggravated sexual assault, sexual assault and bigamy. The charges stem from a 2007 raid on the Yearning for Zion ranch. There, Texas authorities allege they found evidence that Jeffs had "married" and impregnated two underaged girls.)
Oler describes the potential witnesses for the reference case as: a young, unmarried woman; a widow who lived for decades in a polygamous marriage; a monogamous man; a plural wife; four women whose children were taken from them during a raid on the FLDS ranch in Texas; and a man who was involved with FLDS schools in the United States.
But he says that without immunity, none will testify.
There is no precedent for this request. There's also no provision in civil law for what the FLDS is asking.
Only in criminal law are there provisions for immunity from prosecution and witness protection, other than publication bans.
Yet even if immunity were possible, a Canadian court cannot bind American prosecutors and courts.
So, it's likely the chief justice will deny this unusual request even though this is an unprecedented constitutional case being heard in a trial court instead of an appellate court.
What's interesting about this request is that fundamentalist Mormons have been vocal in their contention that the Constitution protects their right to practise both their religion and polygamy.
Yet they seem to have qualms about standing up for what they believe in.
Winston Blackmore and his 500 or so followers, who broke with the FLDS nearly a decade ago, pulled out of the reference case after Bauman ruled that the two governments didn't have to finance his participation.
Muslims also seem to have qualms. None even asked to be heard.
Yet, six members of the secular Canadian Polyamory Advocacy Association filed affidavits.
One American even acknowledged that participating in the case may put his application for Canadian citizenship at risk.
But perhaps risking jail for their beliefs is a burden too great for religious polygamists to bear.
This article was found at:
http://www.vancouversun.com/life/Polygamists+will+stand+their+beliefs+only+point/3472859/story.html
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CBC - Canada September 10, 2010
B.C. polygamists seek anonymity in court
Court should also grant polygamous participants immunity, lawyer argues
It is essential that people who willingly live in polygamous communities testify at a B.C. Supreme Court hearing if the court is to determine whether Canada's laws against polygamy are constitutional, a lawyer says.
But those people won't testify unless they're allowed to use pseudonyms and sit behind a screen, said lawyer Robert Wickett.
Wickett represents James Oler, one of the religious leaders of Bountiful, the polygamous B.C. community at the heart of the court case.
"The proper administration of justice requires their protection if they are to participate, and they call upon the court for that protection," Wickett said in a submission to the court.
Their testimony "is not only desirable but essential" to the case. The witnesses could discuss their religious beliefs, cultural underpinnings, or life experiences, he said.
A number of former members of polygamous communities have filed affidavits in the case detailing how harmful such lives can be.
Oler, a bishop with the Fundamentalist Church of Jesus Christ of Latter Day Saints, and other church members have filed an application in B.C. Supreme Court aiming to protect themselves against future prosecution on polygamy charges.
Province did not appeal
Oler and another Bountiful leader, Winston Blackmore, were each charged last year with practising polygamy. They lead separate factions within the fundamentalist offshoot of the Mormon church, which renounced polygamy more than a century ago.
A judge threw out the case against Oler and Blackmore.
The provincial government did not appeal that decision, but asked the B.C. Supreme Court to decide whether the federal law banning polygamy violates the Charter of Rights and Freedoms.
Oler, who was accused of having three wives, has been named as an intervener in the constitutional reference case.
Wickett said Canada's Charter of Rights doesn't provide adequate protection from prosecution in Canada or the United States for Oler and other members of the FLDS.
But the Crown has declined the request for immunity for Oler and the FLDS witnesses. Wickett said there is concern church members — both Canadian and American — could be tried.
Wickett's application asked that witnesses not give any details that might identify them.
They would also use pseudonyms and give evidence from behind a screen or by teleconference.
Judge reserves decisions
Craig Jones, a lawyer for the B.C. attorney general, told Supreme Court Justice Robert Bauman there is no tradition of anonymous plaintiffs in Canadian law.
"They are not seeking protection of the law in the interests of the rule of law," he said. "They are seeking protection from the law."
Jones said the application should be denied because Oler and the other FLDS members have not specified what information they'll provide or why it's essential to the case.
"We're left shooting at shadows here," he said.
Deborah Strachan, who represents the federal attorney general, said if the application for immunity were granted, it would jeopardize the cross-examination process and the anonymity would make it more difficult for prosecutors to try their case.
Bauman reserved his decision Friday. He did not say when it might be issued.
Earlier this week, the judge reserved a decision in the same case involving the Canadian Polyamory Advocacy Association.
The group advocates for allowing multiple spouses and wants to know if a law against polygamy could apply to its clients.
The association has said polygamy is based on a patriarchal system, while polyamorous relationships are consensual.
This article was found at:
http://www.cbc.ca/canada/british-columbia/story/2010/09/10/bc-polygamy-hearing-anonymous.html
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