15 Jan 2011

Mormon fundamentalist leader asks court to exclude evidence against him in Canadian constitutional case on polygamy

The Province - B.C., Canada November 5, 2010

Bountiful leader wants evidence excluded from constitutionality trial

By Keith Fraser, The Province

James Marion Oler, one of two religious leaders from the commune of Bountiful whose prosecution for polygamy was quashed last year, is seeking to have evidence relating to him excluded from a constitutionality trial currently under way.

When the charges against Oler and Winston Blackmore, both bishops in the Fundamentalist Church of Latter Day Saints at Bountiful, were quashed, the provincial attorney-general sought a ruling from the B.C. Supreme Court on the constitutionality of Canada’s polygamy law.

Oler wants evidence gathered by police during the prolonged attempt to prosecute him excluded from the constitutionality case. Robert Wickett, a lawyer who represents Oler and the FLDS, filed a motion in B.C. Supreme Court to this effect Friday.

The police evidence, in the form of an affidavit by Sgt. Terry Jacklin, the team commander in the Oler-Blackmore investigation, was filed by the attorney-general as a reply to written submissions from Wickett.

It has information about child brides, arranged marriages and multiple marriages, which the attorney-general of B.C. and attorney-general of Canada argue are social harms requiring that the polygamy law be upheld.

But Wickett told B.C. Supreme Court Chief Justice Robert Bauman that the evidence was not properly filed, was unfair and was hearsay.

Tim Dickson, a lawyer acting as amicus curiae or friend of the court, said he supported Wickett’s arguments.

But Craig Jones, a lawyer for the attorney-general of B.C., told the judge that police evidence is frequently used in courts and inquiries, such as the recent Braidwood Taser inquiry and the inquiry into the death of Frank Paul.

“In the reference, the RCMP has decided to assist the court through the provision of information from historical investigations, information clearly relevant to the issues being decided.”

The judge reserved his decision.

The FLDS is a denomination of the Mormon faith that practices plural marriage. There are several hundred FLDS members living in Bountiful, in B.C.’s Interior.

The trial is expected to get under way Nov. 22 and hear from 36 witnesses, including expert testimony and evidence from people practicing polygamy.

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The Vancouver Sun - Canada November 6, 2010

Polygamists want to testify, but only on their own terms

by Daphne Bramham

Fundamentalist Mormons have already won the right to testify anonymously and behind screens in the reference case to determine whether the constitutional guarantee of religious freedom includes the practice of polygamy.

On Friday, they asked the B.C. Supreme Court for much more.

The lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints asked Chief Justice Robert Bauman not to allow an affidavit by RCMP Sgt. Terry Jacklin, who led the two-year investigation into the community of Bountiful.

FLDS lawyer Robert Wickett also asked Bauman to limit cross-examination of Bountiful Bishop James Oler and Bountiful elementary-secondary school principal Merrill Palmer to only the substance of their affidavits.

In Oler's case, Wickett wants questions limited to only FLDS beliefs and practices, while Palmer's cross-examination would be limited to the history and operation of the government-funded school.

Even though both Oler and Palmer waived their rights to anonymity, Wickett says they should not have to answer questions of a personal nature such as: How many wives do you have? How old were they when you married?

(Both men are known to be polygamists, although Palmer has never been charged. Oler was charged in 2009 with one count of polygamy, and two women's names were listed on his indictment. The charge was eventually stayed.)

Craig Jones, the lawyer for the B.C. attorney-general, strongly opposed the FLDS request.

To counter some of the statements in Oler's and Palmer's affidavits, as well as some in an affidavit by expert witness Angela Campbell (whose conclusions are based on interviews with unidentified women in Bountiful), the B.C. attorney-general's ministry wants to file an affidavit from Sgt. Terry Jacklin, who led the two-year RCMP investigation into the activities in Bountiful.

In their affidavits, Oler contends that any criminal activity in Bountiful is quickly reported to police, while Palmer says the education of children is paramount.

Jones rejected Wickett's suggestion that Jacklin's affidavit is hearsay, noting that everything in it is backed by official documents, including birth certificates signed by the fathers, all of which he would be happy to file as evidence in court.

Quoting from Jacklin's affidavit, Jones noted that in 1982, a 25-year-old bishop married a 15-year-old girl. In 1991, a 35-year-old bishop married a 16-year-old who had a child that same year. Two years later, a bishop married a 15-year-old. In 1994 and 1997, a bishop's brides were 17. In 1999, a 42-year-old bishop had two brides aged 15.

"Yet this doesn't trigger any concern among FLDS officials or Oler or the principal of the school," Jones said. "We say that these are episodes of criminal behaviour.

"Can you imagine anywhere else in the rational universe where a 15-year-old is pregnant by a 50-year-old and the bishop and the school principal don't report it? At the very least, it is a gross abdication of an educator's responsibility."

Bauman has reserved his decision. However, if the chief justice rules in favour of the FLDS motion, Jones said Oler and Palmer will never have to answer why they never reported sexual exploitation of minors. Nor will they have to answer if they are successful in having the polygamy law struck down in court.

"We are not playing game here," Jones said with the first flare of passion in a case that's about religious and sexual passion. "The safety of children is on the line here."

There is a lot at stake and it's not only the safety of children.

Brian Samuels, the lawyer for Stop Polygamy in Canada, gave notice Friday that before the trial begins, he will be filing an application to withdraw one witness and her affidavit.

The reason? The unnamed witness has been receiving threats because of her involvement in the case.

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