Accused B.C. polygamists request trial by jury

Lawyers for two B.C. men charged with having multiple wives are planning for a jury trial but are still hoping to have the case tossed out of court before then.
Winston Blackmore, accused of having 19 wives, shares a laugh with six of his daughters and some of his grandchildren in April 2008. ((Jonathan Hayward/Canadian Press))

Lawyers for two B.C. men charged with having multiple wives are planning for a jury trial but are still hoping to have the case tossed out of court before then.

The lawyers for accused polygamists Winston Blackmore and James Oler have two applications before the courts to stay the proceedings before the precedent-setting case even goes to trial.

Blackmore's lawyer, Joe Arvay, also has a constitutional challenge up his sleeve for the preliminary hearing if the first applications don't work.

Both accused are religious leaders from the tiny community of Bountiful, in southeast B.C., where they are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints.

Blackmore is alleged to have 19 wives; Oler three. Members of their sect believe that a man has to have at least three wives to get to heaven.

Documents filed by Arvay with the B.C. Supreme Court say Crown disclosures allege about 25 per cent of the 1,500 residents of Bountiful live in a polygamous relationship.

On Friday, Arvay told the court he has two applications that could prevent the trial from going forward.

"Part of it goes to the claim that there's the perception of interference by the attorney general in this prosecution," Arvay said, referring to B.C. Attorney General Wally Oppal's push for criminal charges to be laid in the case.

Charges laid in January

The documents show that several of the province's best legal minds recommended — as far back as 1992 — against attempting to prosecute the Bountiful leaders because they felt the polygamy law was unconstitutional.

After the two men were charged in January, Oppal, a former B.C. Appeal Court judge, said he was confident the charges would withstand a constitutional challenge because the law is aimed at preventing the exploitation of women.

While several of the legal decisions over the years were made public, Arvay's application to the B.C. Supreme court said his request to see the most recent documents related to the decision to proceed with charges has been refused.

Arvay's two applications on behalf of his client will be heard next month. One argues that the case should be dismissed on the grounds that Oppal inappropriately intervened, and the other makes the case that unless Blackmore's legal fees can be covered, the case should be thrown out.

If neither of the applications are successful, Arvay said he'll ask the judge in the preliminary inquiry to throw out the case on constitutional grounds.

"It's an argument that I can make with considerable persuasion," Arvay told the provincial court.

He claimed a judge hearing the preliminary inquiry would be "duty bound" to stop the case from going forward if it's contrary to the Charter of Rights and Freedoms.

A preliminary hearing is held to determine whether the Crown has enough evidence to take the case to a full trial.

Defence and prosecution lawyers were in court on Friday for an arraignment hearing, in which an accused person informs the court how they want the case to be heard.

Arvay didn't want the outcome of that hearing released until the court ruled on his applications.

"The Crown has waited 20 years; it could wait another couple of months," Arvay told provincial court judge Wilfred Klinger.

But Crown lawyer Terry Robertson was concerned about any further delays in the case.

"It doesn't bode well for the public view of the administration of justice, because of the media attention, to put this case on hold for two or three years," he responded.

Klinger said he didn't believe the men's case would be prejudiced if the decision on what type of trial they want was announced in court.

"My interest in this case is that it proceeds to an extent which is consistent with fairness," he said.

Neither Blackmore nor Oler were in the court, but their lawyers said the men want trial by judge and jury.

The lawyers will be back in court next month to fix a date for the preliminary inquiry, which is expected to be held in Cranbrook.