Judge’s quandary: Should polygamists get to testify anonymously? By Daphne Bramham, Vancouver Sun, September 11, 2010

It’s a conundrum: How can you tell your side of the story in court, if that story is potentially grounded in a criminal offence?

That’s the problem faced by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, the largest polygamous group in North America with 10,000 members, 500 of them living in Bountiful, B.C.

The FLDS wants some of its members to be witnesses in the constitutional reference case that is scheduled to begin Nov. 22 in B.C. Supreme Court. But it says it will do that only if the witnesses are assured that nothing that they say can be used against them, their relatives or friends in a future prosecution.

On Friday, the lawyer for the FLDS asked Chief Justice Robert Bauman to allow FLDS members to testify anonymously, behind screens, via teleconferencing or using pseudonyms.

Robert Wickett amended his motion during the hearing, telling Bauman that it was his intention that the chief justice — and only the chief justice — would be able to see the witnesses and know their real identities.

Wicket also asked for an order that FLDS witnesses be exempt from answering any questions during crossexamination that would identify them or anyone else who engages in activities that may be determined to be illegal. Without those assurances, FLDS members will not testify. That’s something both Wickett and the court-appointed amicus George Macintosh say is essential to Bauman’s understanding of how polygamy fits within their culture and religion.

Macintosh noted that the B.C. attorney-general’s lawyers have filed 19 affidavits from former members of the FLDS, which he described collectively as “the story of the disenchanted.” To hear only that side, Macintosh argued, is like listening to only one party in a divorce.

What the FLDS wants is unprecedented. It’s contrary to the fundamental principle of an open court. It runs counter to the principle that testimony is open to challenge to determine its veracity and establish the witness’s credibility.

And that’s only part of the reason that the attorneys-general for British Columbia and Canada oppose the FLDS request.

The lawyers for the two attorneys-general are concerned that if Bauman makes such an order, it may have the effect of shielding criminals from prosecution for offences beyond polygamy.

The B.C. attorney-general “is unaware of any circumstance in which a court has taken, or held that it could take, steps under its inherent jurisdiction to shield a witness or others from subsequent prosecution, except (conceivably) where such prosecution would occur in violation of human rights norms in foreign countries,” Craig Jones said in his submission on behalf of British Columbia.

What if, for example, a witness testifies to a child rape or assault, Jones asked.


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