British Columbia's government wants video testimony of former wives and children from polygamous communities kept from the public, the B.C. Supreme Court has been told.
Nearly all of the 14 people who gave their affidavits via video are highly critical of the polygamous way of life and all have left their communities.
But while the content of what they have to say will remain public, the B.C. Crown wants to ensure their images don't end up on the internet unless the witnesses consent.
The lawyer for the province, Craig Jones, also asked the judge in the case being heard in Vancouver to order a local newspaper that has already posted edited clips from four of the videos to remove them.
'It's not even a remote and speculative danger, it's just a whim, a preference by a witness.' —Media lawyer Dan Burnett
Jones said the witnesses have volunteered to tell their stories, but that doesn't mean they've consented to having the videos circulated online.
"There has to be a difference between a witness accepting that they will be reported on, that the judicial process will be scrutinized [by reporters] on the one hand, and on the other hand, that their image and voice will be broadcast for eternity on the internet," said Jones.
The affidavits have been filed as part of a landmark court case determining whether Canada's prohibition against polygamy is constitutional.
Jones said witness Ruth Lane, who was once married to Bountiful leader Winston Blackmore, had complained that her video was posted to the internet. In contrast to the other witnesses, Lane argues that polygamy shouldn't be illegal.
Appeared on U.S. TV
But Dan Burnett, a lawyer for several media outlets challenging the Crown's request for a publication ban, said Jones had failed to demonstrate any harm from allowing the public to see the videos.
He noted Lane has made numerous magazine and television appearances, including appearing on the Dr. Phil daytime TV show in the U.S.
"The suggestion that there is any [negative effects from publishing the videos], when she has said the same thing to a mass national audience is a stretch to say the least," said Burnett.
"It's not even a remote and speculative danger, it's just a whim, a preference by a witness."
Jones said the justice system must respect the privacy of witnesses to ensure they will be comfortable coming forward. He said that's particularly important for the polygamy case because witnesses can't be compelled to testify and have instead volunteered to do so.
The court had already permitted the media to access the videos, but Jones argued that isn't the same as obtaining permission to publish them.
He said news outlets should be forced to seek permission from the court — and obtain consent from individual witnesses — before broadcasting such video testimony.
Judge questions restriction
Chief Justice Bauman, who is hearing the polygamy case, repeatedly questioned why reporters shouldn't be able to publish a video if the court has already allowed them to make a copy of it.
"What good is access if there is no right to publish the results of the access?" Bauman asked Jones.
"[The media] have to be able to describe them and say what's in them," Jones replied.
"But they have no automatic and constitutional right to publication. At the very least, they have to ask somebody."
The constitutional reference case began on Monday and has so far heard opening statements from government lawyers and about a dozen interveners arguing for and against the current law.
The B.C. government launched the case after the failed prosecution of two leaders in Bountiful.
Blackmore and James Oler, who lead separate, divided factions within Bountiful, were each charged last year with one count of practising polygamy. Those charges were later thrown out on technical legal grounds.