His Lordship Justice Bauman allows FLDS witness anonymity

Dear Network:

Kathleen Mackert, Steering Committee member for Stop Polygamy in Canada, has said it best. I have listed her comment below and the article by Keith Fraser of The Province in Vancouver about His Lordship Justice Bauman’s decision below.

It appears that the court is bending over backwards to accommodate a group allegedly involved in the criminal practice of polygamy. At the hearing on September 10 where Robert Wickett, attorney for James Oler and the Fundamentalist Church of Jesus Christ of Latter Day Saints, and George K. Macintosh, Q.C., argued for anonymous affidavits and witness’ hidden identity; and, Craig Jones, BCAG attorney, and Deborah Strachan, CAG attorney, argued against, Craig Jones said the fallout of such a ruling would be unimaginable.

Well, the earthquake has happened and the aftershocks will be felt for years. What does this ruling do to the open court system in Canada? I am sure there are Muslim women and men and ex-FLDS men and women who would have testified anonymously for our side of this argument if we had owned a crystal ball in which to see this decision when our affidavits were due! There may be a rainbow over Bountiful in Nick Procavio’s picture, but there is no rainbow over the great harm the crime of polygamy has done to women, children, and young men in our society! I am sick about this!

When I receive the court motion giving His Lordship’s reasons, I will post it on my blog.

Nancy Mereska, President
Stop Polygamy in Canada

Polygamy Violates Human Rights

From: Kathleen Mackert [mailto:vjmgatewaytofreedom@yahoo.com]
Sent: Saturday, September 25, 2010 1:22 AM
To: Brian Samuels; Nancy Mereska; Rena Mackert; Jancis Andrews

Subject: Re: Baumann’s reasons


I am very disturbed by this ruling! What is to keep these anonymous witnesses from perjuring themselves? Where is the accountability? Witnesses who have dared to speak out against polygamy have had their lives threatened, harassed, and their families who are still under the control of these cults, have been punished to insure that opposing witnesses do not testify. We have experienced this first hand, and our niece Candy Shapley had her father’s family punished for her cooperation with a pending case. Her father’s wives and children were going to be taken from him and given to another; until she finally refused to testify.

We have not been allowed to testify anonymously! This ruling is entirely absurd!

All that is necessary for the triumph of evil is for good men to do nothing. – Edmund Burke

Kathleen Mackert
Valerie Jeffs Mackert Gateway to Freedom

B.C. judge allows witnesses to remain anonymous at polygamy hearings

SEPTEMBER 24, 2010

Witnesses from the B.C. community of Bountiful, a polygamist sect near Creston, will be allowed to remain anonymous during testimony at an upcoming constitutionality trial.
Photograph by: Nick Procaylo, PNG files

B.C.’s top trial judge has ordered a publication ban on the identities of polygamists who might testify at a hearing to determine the constitutionality of Canada’s polygamy laws.

B.C. Supreme Court Chief Justice Robert Bauman found that it was necessary to impose the order to allow the case to proceed with a “complete record and full argument on all sides.”

The applicant, the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) and its bishop, James Oler, argued that requiring the witnesses to be identified would put them in jeopardy of being criminally prosecuted if the law is upheld.

Lawyers for the B.C. and Canadian governments argued against an anonymity order. George Macintosh, a lawyer appointed as amicus, or friend of the court, supported the application, arguing the witnesses were needed for the hearing.

The judge found the risk of harm to the continuation of the case was not the possibility for prosecution for criminal conduct if the witnesses testify without an anonymity order.

“That concern is quite beside the mark,” he said in a ruling released Friday. “The fact is that in all likelihood if the order does not go, the proposed witnesses will not testify.

“The order is needed so as to ensure that the evidence of these witnesses is before the court. And that evidence is necessary for the court to conclude the reference.”

The judge ruled that if a witness tenders evidence by affidavit, the witness may elect not to include his or her name or identifying details and the witness may use a pseudonym.

He also found that if a witness is cross-examined on an affidavit or gives evidence in open court, questions that would reveal his or her identity would not be allowed. Furthermore, a witness may elect to give evidence from behind a screen and use a pseudonym.

Oler and Winston Blackmore, also a bishop of FLDS in the community of Bountiful near Creston, were charged with polygamy but had their charges stayed after a judicial review of the charge-approval process.

FLDS is a denomination of the Mormon faith which engages in the practice of multiple marriages.

The trial on the constitutionality issue is expected to get under way in B.C. Supreme Court in Vancouver in November.
© Copyright (c) The Province


5 responses to this post.

  1. Posted by Faye on September 25, 2010 at 6:32 pm

    In such circumstances the question “Why?” always comes to my mind. Can there POSSIBLY be his highness has ulterior personal reasons? I do not like to put this to paper but as Jones says the outcome is awful and ‘…the fallout of of such a ruling would be unimaginable’. Delete this if you so wish.


    • Posted by Nancy Mereska on September 28, 2010 at 5:14 am

      The correct title for a Justice of a Supreme Court is His Lordship or Her Lordship, not “his highness,” Faye. We cannot assume what someone is thinking in any situation. As much as I appreciate your continuous contribution to the cause of Stop Polygamy in Canada, in any situation, we must respect the title and position of the person(s) in charge of decision making. I want to add that attorneys for the AG’s of BC and Canada argued brilliantly against allowing anonymous affidavits. But, the final decision was solely His Lordship Justice Bauman’s to make. We must accept this and move on. Our legal team headed by Brian Samuels and Robert Deane are doing a tremendous job for us. We may not be happy with the outcome of this “battle” but the war has yet to be fought.


  2. Posted by Faye on September 25, 2010 at 6:36 pm

    Re-reading his statement I realize the poor man lacks full knowledge of what the FDLS is all about; he must have his head in the sand to not realize what he is about to do to the innocent.


  3. Posted by Faye on September 28, 2010 at 4:26 pm

    You are of course, correct in this Nancy. Please accept my apology for being harsh in this situation. It is unprofessional and unnecessary. Having gone through the Supreme Court system on my own several times in the course of my divorce, the titles are well known to me. His Lordship, I am sure is following all guidelines of our legal system, in our democractic country. We are all extremely grateful I am sure, for the legal counsel of Robert Deane and Brian Samuels.


  4. Posted by Jane on September 28, 2010 at 5:09 pm

    It is important that the legal team also promote the current legislation in s.293 ,inclusion of criminal charges being applicable to persons involved in sanctioning or assisting with authority, or pretension to binding authority over more than one spouse at a time. (including common law or cohabitation as spouses) When privincial family courts include “recognition and sanctioning” of any gender who claims in FAMILY court to have more than one spouse at a time, polygamy is legal in Canada (at that point)
    Saskatchewan Family Court justices have already sanctioned married persons to have more than one spouse at a time in their province. They claim this is not sanctioning polygamy because they are only rationing marital like property amongst perwsons with more than one spouse! SInce provinces have sole discretion over dealing with Family law and property, it sure sounds like they are sanctioning, assisting with authority,.and authorizing more than one spouse at a time! If a provincial queens bench court judge says its ok to have numerous same time spouses under Family Property law, and as Saskatchewan says, the property rights of the first in spouses come before any subsequent claims…then the third in spoyuses have no property claim.
    Bottom line, does anyone think this is not sanctioning and assisting with polygamy?


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