Battle over legal costs could derail B.C. polygamy case

Winston Blackmore and James Oler -- the two B.C. men charged with a single count each of practising polygamy -- both pleaded not guilty and elected trial by judge and jury.
Both men are fundamentalist Mormon leaders from Bountiful who believe that a man needs multiple wives to enter the highest realm of heaven.
Their beliefs diverged from the mainstream Mormon church in 1890 when the Church of Jesus Christ of Latter-day Saints renounced the practice of polygamy.
The next stage is a preliminary inquiry in Cranbrook. A date has yet to be set, but special prosecutor Terry Robertson expects it will be in late fall and could take up to 20 days.
However, the whole process could still be derailed by Blackmore's unusual application to the B.C. Supreme Court that will be heard June 29 and 30.
Justice Sunni Stromberg-Stein has been asked to either: stay the criminal charge because of what Blackmore's lawyer Joe Arvay says has been an abuse of process; or stay the charge unless the provincial government agrees to pay the legal costs for Blackmore's team of lawyers at the same rate that Robertson and his team are being paid.
For the first part, Arvay will argue that Attorney-General Wally Oppal interfered because he went against the recommendations of his ministry staff, legal opinions given by two retired and respected judges more than a decade ago, and more recent opinions given by two special prosecutors.
But what's unusual is the second option. Arvay is asking that Blackmore get government funding without making any financial disclosures.
If Stromberg-Stein agrees to order the government to pay Blackmore's legal costs, it would set a precedent for all future funding for impecunious defendants.
Currently defendants have only two means of getting public funding. One is legal aid, which rejected Blackmore's application. The other is by making a Rowbotham application to a judge who decides based on extensive disclosure and examination of the applicant's finances.
Arvay will argue that no individual should have to bear the cost of a constitutional test case that has broad public implications.
Blackmore put it more plainly on his blog: "Just suppose that some foreign force attacked our Canada and sent in their army to destroy it, would you think it prudent, wise or fair, for the government of Canada to call on one farmer from out west to defend the nation with proceeds from his grain crop?"
Arvay is right to argue that this is an important case with implications far beyond either his client's or Oler's interests since it could reset the legal limits of tolerance toward religious practices.
There can also be no argument that for justice to be served, it shouldn't only be the Crown's interests that are represented by the best lawyers.
But if Stromberg-Stein orders the province to pay Blackmore's costs, it would mean that taxpayers would then be on the hook for the full legal costs in any trial with constitutional implications, regardless of a defendant's ability of defendants to pay.

(First in line would be Oler. His lawyer Robert Wickett has not yet joined in Arvay's application, but if it's successful, Wickett said Friday it would be in his client's best interest to file a separate, similar application.)
I'm not sure that what Arvay is asking for is reasonable, especially since there are other complex or worthy cases of broad public interest that aren't eligible for public funds.
My colleague Ian Mulgrew, for example, wrote in January how we may never know what happened aboard the BC Ferry that sank, killing two people, because the victims can't afford the exorbitant court fees. He quoted lawyer Peter Ritchie saying, "Unless you are wealthy in B.C., you cannot go to court."
Still, you can't blame Blackmore and Arvay for trying to avoid making a Rowbotham application. These are complex at the best of times. But just as a start, to determine the household income of a family with many wives (some of whom work), Blackmore would have to list them all, and that could mean more names added to the indictment.
They'd have to deal with another very sticky issue. In Bountiful, most of the property is held communally. But Blackmore is the president and/or director of several companies.
Are they his companies or the community's?
Revenue Canada is currently battling Blackmore over some of those issues. The next hearing on Blackmore's case in the Tax Court is scheduled for only a few days before Stromberg-Stein hears the application.

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In the end, it may be legal bills that sink the polygamists

These are tough times for fundamentalist Mormon polygamists.
The criminal charges -- one count each of practising polygamy -- against Bountiful's two leaders, James Oler, 44, and Winston Blackmore, 52, are expected to end up in the Supreme Court of Canada because their defence is that the Constitution guarantees their right to freedom of religion and polygamy is one of their beliefs. Their legal costs could be $1 million or more.
Even in good times, that's a lot of money for men with multiple wives and, in Blackmore's case, 119 children. But these aren't good times.
Forestry, the backbone of Bountiful's economy, has tanked.
Oler Bros. Contracting -- a company owned by Oler's half-brother, Ken -- filed for bankruptcy on April 14. With only $2.98 million in revenue and liabilities of just under $4.8 million, Oler Bros.' first meeting with its creditors is scheduled for today in Red Deer, Alta.
It is one of Bountiful's largest companies and one of the largest employers of members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Even without paycheques, these men will be hard-pressed to help pay for the legal defence of their bishop, James Oler.
It's not like they can sell land or remortgage their houses. Almost all of the property in Bountiful is held in trust. Initially, the United Effort Plan was controlled by the FLDS, but in 2005 a Utah court granted control of it to an independent trustee who has been attempting to convert the communal property back to individual ownership in both the United States and Canada.
Trustee Bruce Wisan has sold some of the land in Utah and Arizona to cover his fees, but he's still owed more than $2.6 million US.
(Oler, Bountiful's bishop, had his bail conditions altered so he could attend a United Effort Plan settlement conference in Salt Lake City last week. No settlement was reached.)
Wrangling over the United Effort Plan is only part of the FLDS's massive legal bill that includes the defence of prophet Warren Jeffs, who has already been convicted in Utah as an accomplice to the rape of a 14-year-old, and is awaiting trial in Arizona. He and six other FLDS men also face charges in Texas relating to plural marriages to underage girls.
Oler, a heavy-duty mechanic whose indictment lists three "wives," has few assets -- two pieces of property with homes on them valued at $636,400. However, Oler's lawyer Bob Wickett says his client will not be applying for either legal aid or for a court-appointed lawyer.
But Blackmore's financial troubles are bogging down the criminal prosecution. So far, neither man has entered a plea because Blackmore claims he doesn't have enough money for a lawyer.
Former Liberal MLA Blair Suffredine represented him at his first two appearances. Now, Joe Arvay is Blackmore's choice for his defence that rests heavily on his belief that the law is unconstitutional because it infringes on his right to freedom of religion.
But Arvay will defend Blackmore only if he's paid, and legal aid has already rejected Blackmore's application. Now Arvay is preparing an application for court-ordered financial assistance.

On his blog, Blackmore recently explained why he believes he's entitled to taxpayer funding.
"Just suppose that some foreign force attacked our Canada and sent in their army to destroy it, would you think it prudent, wise or fair, for the Government of Canada to call on one farmer from out West to defend the nation with proceeds from his grain crop, and with his gopher rifle and own ammunition . . . while the rest of Canada sat by and watched the show?
"This is not just about our faith . . . This is an attack on the basic freedoms that we should all enjoy and every Canadian should defend it."
In the past decade, Blackmore -- whose indictment lists 19 wives -- has gone from having nearly $6 million in assets to near bankruptcy.
In 2003, Blackmore failed in court to regain control of the Bountiful elementary-secondary school and its land from the United Effort Plan. The next year, Revenue Canada sued him in federal court for payment of $465,427 owing in income tax and GST, which he finally paid in 2006. In the last four years, Blackmore and his companies have forfeited close to $3 million worth land in Alberta and B.C. because they couldn't pay the mortgage or the taxes.
It may not be the intent here. Still, it bears remembering that faced with intractable and unwanted groups such as the Mafia and Aryan Nations, the U.S. government didn't break them through incarceration. It bankrupted them.

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