Vancouver Sun - June 3, 2011
Judge denies polygamist leader's unprecedented request for evidence shield
By Daphne Bramham | Vancouver Sun
Canada's highest profile polygamist has not only lost in an attempt to win a sweeping ban on the use of evidence and witness testimony in federal Tax Court, Winston Blackmore was ordered to pay $50,000 in costs.
Winston Blackmore is appealing the Canada Revenue Service's re-assessment of five years of personal income tax filings and its conclusion that he under-estimated his income by $1.5 million. In addition to the re-assessment, the government ordered Blackmore to pay $147,000 in penalties.
The appeal is based on Blackmore's assertion that he, members of his family and other fundamentalist Mormons in Bountiful who accept him as their spiritual leader ought to be taxed as a congregation and not as individuals.
Only days before his case was to go to trial, Blackmore filed a motion asking for the publication ban and a shield on use of evidence and witness testimony in any future criminal prosecution related to polygamy. [see related articles below]
On Friday, Judge Campbell Miller ruled that there would be no ban on publication of evidence and witness testimony; no restriction on future use of the evidence and witness testimony; and, no further delay in the tax trial.
Blackmore was not in court.
In his oral judgment, Miller said Blackmore and his lawyer David Davies fell “well short” of proving the necessity for a publication ban, noting that in the past Blackmore has not shied from publicity and has been open in discussing his polygamous lifestyle.
As for restricting future use of evidence and witness testimony, Miller admitted his concern that the government attempting to use evidence from a civil matter in a criminal case. But he refused to make a precedent setting order that might be viewed as expanding a tax-court appellant's Charter rights.
However, Miller did rule that Blackmore is a “compellable witness” in the Tax Court. Even though Blackmore has brought the tax appeal, Miller noted that reverse onus that tax court puts on citizens appealing their tax assessments gives Blackmore no choice but to testify.
As a compellable witness, Blackmore could argue in a criminal trial that using his testimony and evidence in Tax Court would violate his Charter rights as well as both the Canada and B.C. Evidence acts.
However, Miller noted that there is no guarantee that a judge in a criminal trial would agree and advised that was a risk assessment Blackmore would have to weigh in determining whether to pursue his appeal.
Blackmore's motion was filed only two working days before his two-week trial was scheduled to begin, forcing its adjournment, the judge ordered Blackmore to pay $50,000 for the Department of Justice's lost costs in preparing for a trial that now may be as much as a year away.
A date for a new trial could be set next Wednesday. That's when Miller has asked Davies to advise him and government counsel Lynn Burch of whether Blackmore intends to appeal Friday's ruling. If Blackmore does appeal, Miller said there's no point in setting a trial date until there's an indication of when the appeal might be heard.
This article was found at:
http://communities.canada.com/vancouversun/blogs/thinktank/archive/2011/06/03/judge-denies-polygamist-leader-s-unprecedented-request-for-evidence-shield.aspx
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Courthouse News Service - May 31, 2011
Polygamist Wants Evidence Protected
By DARRYL GREER
VANCOUVER, B.C. (CN) - As British Columbia's Supreme Court wrestles with the murky legal status of polygamy in Canada, the leader of a British Columbian polygamous community wants the Tax Court of Canada to restrict the use of evidence used in a tax trial in possible subsequent criminal proceedings.
Winston Blackmore filed a notice of motion with the Tax Court of Canada naming Her Majesty the Queen as a respondent. Blackmore, in appealing a tax assessment, seeks orders "restricting the publication of any evidence of any witness for the Appellant in the trial of this matter relating to polygamy, plural marriage, 'celestial marriage' (as it is sometimes referred to) or similar practices."
He also seeks an order directing the government to "not use nor make available to any person or entity for the purposes of prosecution" evidence given by witnesses in the upcoming tax trial relating to polygamy.
According to the motion, witnesses in the tax trial fear that evidence given about living arrangements and other information about the Fundamentalist Church of Jesus Christ of Latter-day Saints may be used in criminal trials after the B.C. Supreme Court rules on the constitutionality of criminal laws against polygamy.
Polygamy laws in the country were long held by legal experts to be unconstitutional under religious freedom provisions in Canada's Charter of Rights and Freedoms, leading the B.C. government to ask the province's Supreme Court to rule on the law's constitutionality last year.
Blackmore claims his tax assessment appeal will set a precedent "for the appropriate tax treatment of the Bountiful congregation."
The government, according to the motion, claims that the people of Bountiful are not part of a legitimate religious organization, and given "the polygamous nature of the purported congregation's familial arrangements, any allocation of trust income to families on this basis would be contrary to the intention of Parliament."
"The outcome of the Appellant's appeal will affect all members of the congregation. The Appellant is thereby practically compelled to testify and to call other witnesses from Bountiful or with first-hand knowledge of Bountiful during the relevant years in order to provide direct evidence of the living arrangements in Bountiful and of the congregation's religious characteristics and affiliations," the motion states. "In short, the evidence of the Witnesses is crucial to the Appellant's case, yet absent the Orders sought, the Witnesses' choice is to incriminate themselves of concede the [tax] assessments under appeal."
Blackmore is represented by David R. Davies and S. Natasha Reid.
Bountiful, in southeastern British Columbia, has existed for more than 50 years, but has been known as Bountiful only since the 1980s. It has found itself uncomfortably in the media spotlight repeatedly during the past several years.
This article was found at:
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Vancouver Sun - June 1, 2011
Blackmore wants a publication ban on evidence in tax case
Notorious polygamist's motion also asks for a court order shielding witness from prosecution for polygamy under Criminal Code
By Daphne Bramham, Vancouver Sun
It's a highly unusual request in the bizarre and unprecedented tax case involving Canada's notorious polygamist, Winston Blackmore, and his family.
The case, which provides a glimpse of how one man is able to afford more than 100 children and more than two dozen wives, was to have been heard over two weeks starting Monday in federal Tax Court in Vancouver.
But on Thursday, Blackmore and his lawyers filed a motion seeking a sweeping publication ban on "any evidence of any witness ... relating to polygamy, plural marriage, 'celestial marriage' (as it is sometimes referred to) or similar practices including any evidence given on examination of discovery or in response to undertakings."
The motion, which is being heard this morning, also asks for a court order shielding those witnesses from prosecution for polygamy either under the existing Criminal Code section or "any successor section that might result from the pending decision in the constitutional reference case that was heard in B.C. Supreme Court."
A decision in that case is still pending.
Blackmore has never denied being a polygamist.
He's had at least 19 "wives," has more than 100 children - at least 40 of whom are under 18, according to Blackmore's affidavit sworn in a different case that was heard in B.C. Supreme Court.
But without the publication ban and a shield from criminal prosecution, Blackmore says no witnesses will testify.
Without their testimony about their religious doctrine of polygamy and the living arrangements within the family and the broader fundamentalist Mormon community of Bountiful, Blackmore argues that it won't be possible to convince the court that they ought to be taxed as a congregation and not as individuals.
"In short, the evidence of the witnesses is crucial," the motion says. "[Y]et absent the orders sought, the witnesses' choice is to incriminate themselves or concede the assessments under appeal."
Between 2000 and 2006, the government claims that Blackmore underestimated by $1.7 million the income, employee and shareholder benefits he received from J.R. Blackmore and Sons, of which he is president.
It's not clear how much Blackmore owes if the reassessment is upheld.
However, the assessed gross negligence penalties total just under $149,000.
In the years covered by the reassessment, Blackmore's claimed income never exceeded $45,000 and was "far too little to financially support him, his purported polygamous 'wives' and the many children issued from those relationships," according to the government's amended pleadings.
What Blackmore did was have the company pay his own and his family's personal and living expenses.
For example, according to the government, the company paid a salary to Ruth Lane, one of Blackmore's wives, even though she did no work for the company.
It paid tuition for the University of Calgary, expenses and a salary to his son, Joseph.
It paid for a Cessna aircraft, its maintenance and fuel, even though the company used it only 20 per cent of the time.
The company paid property taxes and garbage removal fees for accommodation used by family members as well as their automobile insurance, vehicle allowances, gas, electricity and telephone bills.
Restaurant meals, hockey tickets and rink rentals charged to Blackmore's credit cards were paid by the company. From 1992 to 2002, Blackmore and his family even received shareholder dividends.
Blackmore claims it was all done for the greater good of the congregation.
But the government says, the majority of Bountiful's 1,000 residents had no role in the company's business and that it "operated for the primary benefit" of Winston Blackmore.
Yet, even if the judge eventually determines that Bountiful is a congregation, the government says Blackmore still didn't claim anything close to what he earned in salary and benefits and never paid the taxman anywhere near what he owes.
And nor did other members of his family.
This article was found at:
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Globe and Mail - June 1, 2011
Blackmore seeks publication ban on polygamy details in tax court
KEVEN DREWS | The Canadian Press
VANCOUVER— Details of child brides and the polygamist way of life in Bountiful, B.C., could burst into the public domain in unprecedented detail thanks to the tax man.
Winston Blackmore, one of the leaders of the breakaway Fundamentalist Church of Jesus Christ of Latter-Day Saints in the province’s southeast, has been assessed hundreds of thousands of dollars in back taxes and penalties.
He’s fighting the assessment in federal tax court.
But before the proceedings could begin, Mr. Blackmore’s lawyer, David Davies, asked the court Wednesday to ban from publication details related to polygamy.
He also asked the court to ensure any evidence heard during the trial can’t be used in any future criminal trials.
Mr. Davies said the orders would protect Mr. Blackmore’s future rights to a fair trial and the administration of justice.
But B.C. Crown lawyer Craig Jones said the application is really about keeping evidence of criminality, specifically child marriage, out of the public domain and subsequent courts.
“It’s no secret he’s a polygamist,” said Mr. Jones of Mr. Blackmore.
Mr. Jones said that under cross-examination, Mr. Blackmore will have to talk about marriages to 12- and 13-year-olds.
“And that’s going to get someone’s attention.”
Mr. Jones said authorities in Canada, Utah and Texas are conducting ongoing investigations into the sect’s activities.
“That’s what this is about,” Mr. Jones said.
A B.C. Supreme Court judge is considering Canada’s 121-year-old ban on polygamy.
This past January, the RCMP announced a renewed criminal investigation focusing on Bountiful after the B.C. Supreme Court heard evidence that teenaged girls were taken across the Canada-U.S. border to be married.
Church records seized in the United States outline the marriage of more than two dozen girls who were as young as 12.
Meantime, Mr. Blackmore’s legal battle with tax authorities has been taking place since the 2000 tax year. As the dispute has worn on, Mr. Blackmore has amassed negligence penalties alone amounting to almost $150,000.
Crown documents filed in response to Mr. Blackmore’s appeal indicate Mr. Blackmore under-reported $1.85-million in income and employee and shareholder benefits received by J.R. Blackmore and Sons, Ltd.
Mr. Blackmore is the majority owner of the company.
In the documents, the Crown argues Mr. Blackmore’s reported earnings were “insufficient to financially support him, his purported polygamous ‘wives’ and the many children issued from those relationships.”
The Crown alleges credit card expenses, tuition for a son, rents, car insurance and hockey tickets, among other basic living expenses, were paid for by the company.
The documents also say the company paid a $41,000 salary to one of Mr. Blackmore’s wives in 2003 when she didn’t do any work for the company.
“The amounts expended by the company in respect of the personal and living expenses of its shareholders and their extended families was part of a purposeful and deliberate plan to reduce taxes at the corporate level and to benefit the shareholders’ extended families,” the Crown says in its court response to Mr. Blackmore.
Mr. Blackmore’s lawyers argue the company was a business agent of a Bountiful congregation.
Justice Campbell Miller of the Tax Court of Canada made no ruling on the application Wednesday.
He said while he expects to rule on the publication ban Friday, he may need more time to consider Mr. Blackmore’s application to ensure anything heard in tax court can’t be used against him in a criminal case.
This article was found at:
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