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Blackmore welcome, but reference case on anti-polygamy law can go ahead without him

By Daphne Bramham,

Vancouver Sun

April 20, 2010

The participation of Winston Blackmore, Canada’s most notorious polygamist, would be welcome in the reference case on the anti-polygamy law’s constitutionality, but the chief justice of the B.C. Supreme Court said Tuesday that it’s not necessary.

In a written decision, Robert Bauman said that not only is Winston Blackmore’s participation and that of his 500 or so followers from the community of Bountiful, B.C. not necessary, there is no reason for taxpayers to pay their legal costs of participating in the reference case.

Blackmore was one of two men charged in January 2009 with practising polygamy, which has been a criminal offense since 1890. The charges were later quashed on a technicality and 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?

So far, 12 interested parties have been accepted as participants in the case which is likely to go to trial in mid-November. Among the parties is Jim Oler, the other man charged in 2009 with polygamy. He is the bishop for the Fundamentalist Church of Jesus Christ of Latter Day Saints in Bountiful.

In his judgment, Bauman said while Blackmore’s participation “would help in developing the record which will assist the court in answering the questions in the reference, but that participation is not ‘necessary’ . . . any more than is the participation of the [12 other] interested persons.”

The chief justice noted, “No proceedings are extant against Mr. Blackmore. He may possibly face a prosecution under s.293 of the Criminal Code in the future, but that is pure speculation.”

Bauman went on to say that while the outcome “may possibly, but not necessarily, affect Mr. Blackmore and his followers in future,” that is not enough to grant them party status equal to the federal and provincial governments and to the court-appointed amicus who will argue that the law is invalid.

He also noted that Blackmore has filed a civil suit against the province for damages arising from the failed prosecution. Adding Blackmore to this case, Bauman wrote “would transform a reference case, which is not an adversarial proceeding . . . into just that.”

However, if Blackmore and his congregation wish to be given status as interested parties, Bauman said he would grant that.

As for advancing Blackmore’s legal costs, which were estimated to be $1 million or more, Bauman described it as an extraordinary request with no legal precedents.

The chief justice noted that the test for advance funding is a determination that an injustice would occur without that party’s participation. He rejected that in Blackmore’s case.

And while Blackmore had provided “fairly significant disclosure of his personal financial situation,” Bauman said there was no evidence that the congregation was unable to raise the money.

http://www.vancouversun.com/life/Blackmore+welcome+reference+case+anti+polygamy+ahead+without/2929926/story.html

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