A lawyer acting on behalf of Winston Blackmore, known as the "Bishop of Bountiful," petitioned the B.C. Supreme Court on Monday to pay for his client's defence or stay the charges.
British Columbia's former attorney general went "special-prosecutor shopping" until he found someone willing to charge two leaders of the controversial polygamous community of Bountiful, Bruce Elwood, argued in court.
Winston Blackmore, 52, and James Oler, 44, are the leaders of separate factions of the polygamous community of Bountiful, in southeastern B.C.
Both men want the B.C. Supreme Court to either throw out polygamy charges against them, or at least force the provincial government pay their legal bills.
The men were arrested in January and each was charged with one count of practising polygamy.
Blackmore, who has admitted to multiple marriages, is accused of having 19 wives and Oler, three.
The men are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway sect of the mainstream Mormon church.
Members of the FLDS believe polygamy brings glorification in heaven, while the Mormon church renounced polygamy more than a century ago.
Charge recommendation not unanimous
The surprising arrests came after several previous legal opinions recommended against criminal charges, instead suggesting a reference case for the courts to determine whether polygamy law could withstand a challenge under the Charter of Rights and Freedoms.
But under intense and repeated public pressure, former attorney general Wally Oppal last year appointed a second special prosecutor, Terry Robertson, who ultimately recommended charges.
Elwood told the court in Vancouver that the first special prosecutor's decision was meant to be final, and governments can't simply look for a second opinion if they disagree.
"The attorney general's exercise in what we have described as special-prosecutor shopping compromised the fundamental principles of independence," said Elwood.
"If the attorney general is free to have a decision of one special prosecutor reviewed ... odds are that eventually the decision will be different."
Special prosecutors are intended to provide arm's-length independence in cases where there could be real or perceived political interference, such as when a cabinet minister is under investigation or in highly sensitive cases such as Bountiful.
Elwood said allowing an attorney general who disagrees with a special prosecutor's decision to simply pick another runs contrary to the purpose of appointing a special prosecutor in the first place.
"The role of a special prosecutor is not to provide a recommendation," he said. "The role of a special prosecutor in these kinds of cases is to make the decisions."
Blackmore wasn't in court on Monday, but Oler was there to watch the proceedings.
Case may end up before Supreme Court
If they can't have the charges stayed, they want the provincial government to cover their legal fees in a case that is likely to end up before the Supreme Court of Canada.
The arrests earlier this year followed nearly two decades of investigations and controversy surrounding the community in Bountiful.
The RCMP first investigated in 1990 after a former community member claimed she was married to a 57-year-old man when she was just 15. There have been subsequent investigations into allegations including polygamy, sexual abuse, and trafficking young girls to sister polygamous communities in the U.S. to be married.
But prosecutors repeatedly shied away from charging anyone in the community with polygamy, concerned that such a case wouldn't withstand a challenge under the charter right to religious freedom.
The Mounties launched a renewed investigation in 2005 and two years later recommended charges against Blackmore and Oler.
In 2007, Oppal appointed a special prosecutor, Richard Peck, to review that recommendation. Peck concluded a conviction would be unlikely, and said the B.C. Court of Appeal should be asked to review the polygamy law to ensure it was constitutional.
Oppal then asked another lawyer, Len Doust, to review that decision. Doust agreed with Peck.
The controversy flared again last year after authorities in Texas seized children from a sister polygamous community. More than 400 children, including one B.C. teen, were taken into state custody before they were eventually returned.
Ten men face trial in Texas on charges, including sexual assault of a child and bigamy.
The B.C. court hearing is expected to continue throughout the week.