Winston Blackmore, a religious leader of the polygamous community of Bountiful, B.C., shares a laugh with six of his daughters and some of his grandchildren in April 2009. (Jonathan Hayward/Canadian Press)

It is essential that people who willingly live in polygamous communities testify at a B.C. Supreme Court hearing if the court is to determine whether Canada's laws against polygamy are constitutional, a lawyer says.

But those people won't testify unless they're allowed to use pseudonyms and sit behind a screen, said lawyer Robert Wickett.

Wickett represents James Oler, one of the religious leaders of Bountiful, the polygamous B.C. community at the heart of the court case.

"The proper administration of justice requires their protection if they are to participate, and they call upon the court for that protection," Wickett said in a submission to the court.

Their testimony "is not only desirable but essential" to the case. The witnesses could discuss their religious beliefs, cultural underpinnings, or life experiences, he said.

A number of former members of polygamous communities have filed affidavits in the case detailing how harmful such lives can be.

Oler, a bishop with the Fundamentalist Church of Jesus Christ of Latter Day Saints, and other church members have filed an application in B.C. Supreme Court aiming to protect themselves against future prosecution on polygamy charges.

Province did not appeal

Oler and another Bountiful leader, Winston Blackmore, were each charged last year with practising polygamy. They lead separate factions within the fundamentalist offshoot of the Mormon church, which renounced polygamy more than a century ago.

A judge threw out the case against Oler and Blackmore.

The provincial government did not appeal that decision, but asked the B.C. Supreme Court to decide whether the federal law banning polygamy violates the Charter of Rights and Freedoms.

Oler, who was accused of having three wives, has been named as an intervener in the constitutional reference case.

Wickett said Canada's Charter of Rights doesn't provide adequate protection from prosecution in Canada or the United States for Oler and other members of the FLDS.

But the Crown has declined the request for immunity for Oler and the FLDS witnesses. Wickett said there is concern church members — both Canadian and American — could be tried.

Wickett's application asked that witnesses not give any details that might identify them.

They would also use pseudonyms and give evidence from behind a screen or by teleconference.

Judge reserves decisions

Craig Jones, a lawyer for the B.C. attorney general, told Supreme Court Justice Robert Bauman there is no tradition of anonymous plaintiffs in Canadian law.

"They are not seeking protection of the law in the interests of the rule of law," he said. "They are seeking protection from the law."

Jones said the application should be denied because Oler and the other FLDS members have not specified what information they'll provide or why it's essential to the case.

"We're left shooting at shadows here," he said.

Deborah Strachan, who represents the federal attorney general, said if the application for immunity were granted, it would jeopardize the cross-examination process and the anonymity would make it more difficult for prosecutors to try their case.

Bauman reserved his decision Friday. He did not say when it might be issued.

Earlier this week, the judge reserved a decision in the same case involving the Canadian Polyamory Advocacy Association.

The group advocates for allowing multiple spouses and wants to know if a law against polygamy could apply to its clients.

The association has said polygamy is based on a patriarchal system, while polyamorous relationships are consensual.