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Blackmore must pay his own legal costs in polygamy case: court

'His voice is not critical to the outcome,' says lawyer representing Canadian poly group

Polygamous leader Winston Blackmore is welcome to participate in the constitutional review of Canada’s polygamy law, but he must pay his own legal bills, BC’s Supreme Court has ruled.

Blackmore had asked for legal funding and court standing on par with the federal and provincial governments, but BC Supreme Court Chief Justice Robert Bauman denied those requests on April 20.

Bauman’s ruling means Blackmore could participate alongside more than a dozen groups such as the Canadian Polyamory Advocacy Association (CPAA), which wants the law struck down.

Blackmore, leader of the polygamous Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) in Bountiful, BC, was charged with one count of polygamy in early 2009.

The constitutional reference came after polygamy charges against Blackmore and rival Bountiful leader Jim Oler were quashed last year. A BC Supreme Court judge agreed with the men’s lawyers that then-attorney general Wally Oppal had gone “prosecutor shopping” in order to lay charges.

Blackmore says the outcome of the reference will determine his constitutional rights, in this case freedom of religion and his faith’s belief in marriages with multiple wives.

While Bauman agreed Blackmore’s evidence would be of assistance in reaching a decision in the reference, the chief justice said “the reference will proceed with or without him.”

Bauman said the reference does not directly affect Blackmore.

If Blackmore decides he’s not going to participate, CPAA lawyer John Ince says there are plenty of other voices in the case for the reference to be heard.

“His voice is not critical to the outcome,” Ince says. “There is already a good deal of duplication.”

If Blackmore does not have full standing and no cash for legal counsel, it means his lawyer, Joe Arvay, may not be in court.

Arvay took the Little Sister’s book seizures case to the Supreme Court of Canada, which resulted in Customs being ordered to change its procedures. He also won the Insite safe-injection site case in which the BC Court of Appeal upheld addicts’ rights to medical treatment.

“Mr Arvay is one of the finest constitutional lawyers in the country, and his participation would be missed,” Ince says.

Summarizing the BC attorney general’s position, Bauman said in the Bountiful situation there is “pressure for the recruitment of increasingly younger women and girls to be wives, and a corresponding cohort of men with no prospects of marriage, with the attendant consequences.”

And, said the BC attorney general’s office in its submissions, while Bountiful may be the exemplar in the polygamy situation, there are other communities outside it that are also affected.

“The [BC attorney general] anticipates that much of the evidence will come from outside the FLDS in any event,” Bauman wrote.

However, Bauman said, the outcome might affect Blackmore and his followers in potential future proceedings.

“He may possibly face a prosecution under [Section] 293 of the Criminal Code in the future, but that is pure speculation,” Bauman said.

An amicus, or friend of the court, has been appointed to represent the case against Section 293, which explicitly bans polygamy.

Blackmore has refused to meet with that lawyer.

“Without Mr Blackmore’s participation… important evidence will be unavailable to the Court,” Bauman wrote.

In their participation, interveners may bring evidence in the form of affidavits and expert reports, make oral and written submissions and participate in the evidentiary phase of the reference.

Blackmore did not consent to those provisions, and asked for greater standing.

Bauman also denied Blackmore advanced costs based on the test created in the case of Vancouver queer bookstore Little Sister’s similar request in its fight against Canada Customs book seizures.

That test says costs should be awarded if an injustice to the applicant and the public at large would be created would arise without such costs.

“I conclude that no injustice arises in the sense discussed in Little Sister’s by denying this application,” Bauman said.