Blackmore may be absent at polygamy court case, judge says

By Daphne Bramham,

Vancouver Sun

April 21, 2010 

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.


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