It Will Be Expensive, and Guess Who Will Foot Much of the Bill?, Daphne Bramham,, Vancouver Sun, January 9, 2009

It Will Be Expensive, and Guess Who Will Foot Much of the Bill?

By Daphne Bramham,
Vancouver Sun
January 9, 2009

http://www.vancouversun.com/Life/will+expensive+guess+will+foot+much+bill/1158226/story.html

Mormon Hills school grounds at bucolic Bountiful in southeastern British Columbia. Two spiritual leaders of the fundamentalist Mormon community were charged Wednesday with polygamy.
Photo by Ian Smith

With the arrest of two religious leaders from the fundamentalist Mormon community of Bountiful for practising polygamy, British Columbia began a long, complicated and expensive court battle that will almost certainly end up in the Supreme Court of Canada.

Winston Blackmore -- the sometimes snarly, mostly cherubic face of Canadian polygamy -- issued a statement Thursday describing his arrest as religious persecution.

Blackmore has long argued that practising polygamy is his religious right. Both he and James Oler are fundamentalist Mormons who follow all of the revelations of the religion's founder Joseph Smith including plural marriage, which was banned by the mainstream church in 1890.

Oler has never spoken publicly.

However, he is the Canadian bishop of the Fundamentalist Church of Jesus Christ of Latter Day Saints, which tried making the argument that polygamy is protected by the constitutional guarantee of religious freedom in the United States in 2006. The U.S. Supreme Court refused to hear the case.

And while the men share similar beliefs, they will have separate defence teams since Blackmore, the former bishop, was excommunicated by the FLDS in 2002.

What further complicates what promises to be a complex constitutional challenge is history. In 1992, attorney-general Colin Gabelmann effectively legalized polygamy when he decided not to press charges against Blackmore and Oler's father, Dalmon. Gabelmann and his staff cited the opinions of legal experts who said that the anti-polygamy law would not withstand a constitutional challenge.

Crown prosecutor Hermann Rohrmoser said in a 1992 press release that the polygamy section was "in direct conflict with the freedom of religion guarantees . . . in the Charter of Rights and Freedoms and cannot be justified."

And, constitutional argument aside, that decision provides another possible defence for Blackmore and Oler -- abuse of process. They may argue that the B.C. government itself led them to believe that it was okay, and to prosecute now is simply unfair.

The B.C. government has deep pockets. Even so, Attorney-General Wally Oppal said he will likely ask federal Justice Minister Robert Nicholson to help with the cost. In the past, while B.C. dithered over laying charges, a succession of federal Liberal justice ministers harboured no doubts about the anti-polygamy law's validity and offered to assist in prosecuting it.

But one can't help wonder whether Blackmore, Oler and even the FLDS itself can afford to turn this case into a constitutional challenge and march all the way to the Supreme Court of Canada.

Since Blackmore was excommunicated from the FLDS, he's gone from having been a multimillionaire (with an estimated net worth of $6 million, at least on paper) to having limited financial resources. Since then, he's had to sell, transfer and even forfeit most of his property and some of his forestry-related businesses. In total, he's divested more than $4 million worth of property.

Oler's personal holdings are considerably less. His two pieces of property have a total assessed value of $636,000. However, he's backed by the church's treasury, which less than a decade ago had hundreds of millions worth of assets.

That said, the church is shovelling money out the door for legal fees because of dozens of court actions various government have filed against it and its members in the United States. If the church is bankrupted, it would not be the first time the U.S. government has used legal actions to break a group -- one such being the Aryan Nation.

One of the most expensive Utah law firms and one of the most expensive Nevada lawyers represented FLDS prophet Warren Jeffs when he was convicted on two charges of being an accomplice to rape of a 14-year-old girl in Utah in 2006. Jeffs is now appealing.

He also has the best legal team money can buy in Arizona where he faces similar charges.

FLDS members have spent thousands of dollars defending the myriad cases resulting from the Texas police raid on the FLDS compound in Eldorado, which resulted in approximately 440 children being taken into state care.

All but 15 of the children have been returned to their parents, but 15 custody cases are still before the courts, including one that was back in court Thursday involving custody of a 14-year-old girl, who was allegedly married to Jeffs at age 12.

The 12 FLDS men, including Jeffs, indicted in Texas have yet to go to court. Jeffs is charged with aggravated sexual assault, sexual assault of a minor and bigamy. Others face similar charges as well as conducting an unlawful marriage and tampering with evidence.

FLDS faithful have had to raise all this money even though church's treasury -- the United Effort Plan trust -- was taken over in 2005 by the governments of Arizona and Utah and placed in receivership.

Of course, in Canada, Oler and Blackmore will not be left to fend for themselves in court. Like the accused in the Air India trial, and serial killer Robert Pickton, it may just be that they will make the case that the B.C. government has to pay for their defence.

It may infuriate taxpayers, but it may be better than the alternative.

All of these court actions are taken to protect women and children. Yet its women and children in Bountiful and the United States have been going without bare necessities such as food and clothing as church leaders demanded their husbands and fathers pay ever more onerous tithes.

Bramham's analysis of why the Crown laid the polygamy charges can be found at ww.canada.com/vancouversun/features/polygamy/index.html

Contact: dbramham@vancouversun.com