1

1 April 12, 2011

2 Vancouver, B.C.
3
4 (DAY 40)
5 (PROCEEDINGS COMMENCED AT 10:00 A.M.)
6
7 THE CLERK: Order in court. In the Supreme Court of
8 British Columbia at Vancouver this 12th day of
9 April 2011 calling the matter concerning the
10 constitutionality of section 293 of the Criminal
11 Code, My Lord.
12 THE COURT: Ms. Herbst.
13 MS. HERBST: Had been Chief Justice, as Mr. Macintosh
14 said in his introduction falling within my bail
15 which are are the parts that largely detail the
16 evidence of we have assembled.
17 As this had evidence factors in had though the
18 legal analysis that's been otherwise dealt with
19 large parts of it have already been addressed by
20 Mr. Dickson and more will be addressed today by
21 Mr. Macintosh in the course of had his submissions
22 so for example Mr. Macintosh will be dealing with
23 the evidence of Dr. Hen direction and professor
24 McDermmit so to avoid repetition I'm going to
25 limit my remarks to two issues.
26 The first of those is putting into context the
27 attorney of British Columbia's a contention that
28 Canada would be the first western nation to
29 decriminalize polygamy if the challengers are
30 listened to and that was said at the outset of the
31 Attorney General of BC's oral submissions and also
32 something found at paragraph 8 of his written
33 closing.
34 And secondly, I will put into context any
35 suggestion that Canada would be offside of
36 international law should it decide to repeal
37 section 293.
38 And bee fitting the fact that my time this
39 morning will be relatively brief I am handing up a
40 slim volume that I have also distributed to the
41 other parties and interested persons just setting
42 some some extracts that I will be referring to.
43 THE COURT: Thank you.
44 MS. HERBST: Sorry to add to the piles.
45 THE COURT: That's all right.
46 MS. HERBST: So turning first to the contention that
47 repealing section 293 would make Canada an outlier
 2

1 among western democracies. I want to look both at

2 the wording that is found in other western
3 countries and how it's been applied.
4 And so looking first at the statutory wording
5 apart from 11 US states to which I'll refer to a
6 few minutes we're not aware of any comparable
7 western democracy that has wording -- that has
8 wording like a criminal prohibition like section
9 293. What most other comparable western
10 democracies have is a provision worded like
11 Canada's section 290 and nothing more. And here I
12 just want to turn to tab 1 of the condensed book.
13 And tab one contains the relevant extract from our
14 written argument starting at paragraph 28 and so
15 it details for example England and Australia and
16 France Luxembourg Switzerland Belgium have
17 prohibitions that sound very much like section 920
18 and I will take as an example turning to page 3.
19 They're numbered at the top right. The case of
20 Australia and at paragraph 34 the Australian
21 legislation that was identified by Professor Cook
22 provides a person who is married shall not go
23 through a form Orser money of marriage with any
24 person and a person shall not go through a form
25 Orser money of marriage with a person who is
26 married knowing or having reasonable grounds to
27 believe that the latter person is married. And
28 just going down a little further arer on the page
29 to page 35 the Australian law reform commission
30 described the critical act in this offence as
31 going through a form Orser money of marriage which
32 purported to be a ceremony of marriage under
33 Australian law.
34 And
35 MR. REIMER: My Lord sorry to interrupt if I might and
36 I would like to come back to this in rely we are
37 dealing with issues of foreign law so the
38 requirements for proving foreign law so I raise
39 that issue at this point.
40 MS. HERBST: Well --.
41 THE COURT: Okay. You can come back it to it in reply.
42 MS. HERBST: My Lord if it I can catch that perhaps in
43 passing. Professor Cook was put forward as an
44 expert on state practice in other countries and
45 she included in her report extracts from or
46 paraphrases of legislation in foreign countries
47 that don't really seem to bear out what the text
 3

1 is or certainly indicated a differentiation.

2 There are issues both of comparing Canada to
3 other states and issues of apart from that
4 comparison itself whether international law shows
5 certain trends. I say that's very much a life
6 issue that Professor Cook was put forward to
7 address. Professor witty to an extent although he
8 tried to back off that to some extent was also put
9 forward to Tracy that fact and certainly I say
10 that this is something that can be taken into
11 account apart from that and I say you don't need
12 to go here but apart from that the scope of
13 evidence that's being received on this reference
14 is extraordinarily wide and to not receive
15 evidence of foreign legislation including where we
16 have extracts of websites that show what that
17 legislation is and that's at Exhibits 122 and 125
18 or that that range you say would be extraordinary
19 given what the defenders have put forward.
20 THE COURT: Go ahead.
21 MS. HERBST: So pointing to countries as a the
22 defenders do although they don't quite drill into
23 the details pointing to countries that the
24 defenders do that have laws like section 290 and
25 not like 293 does not to advance that section 293
26 should be preserved. Section 290 and 293 can't
27 just be conflated many this this discussion I say.
28 It makes logical sense to talk about preserving
29 section 290 while repealing section 293. And in
30 had fact that's what the framers of the questions
31 on this reference seem to contemplate in effect
32 the only questions are framed around section 293
33 not section 290 and if if the challengers prevail
34 on this reference is section 293 is repealed
35 Canada would still have section 290 in place.
36 And the distinction between section 290 and
37 section 293 and the concept of preserving one and
38 repealing the other is something that's common.
39 It's something that was a distinction that was
40 raised by the law reform commission in 19 will 85
41 ask it's working paper on bigamy when it
42 recommended preserving essentially of section 290
43 and repealing section 293.
44 And as a reference that law reform commission
45 report is part of 7 which is our Brandeis brief
46 the Luca affidavit Exhibit B tab 11 and carrying
47 on with the distinction and the logic of speak of
 4

1 an it distinction between 290 and 293 the

2 commentary in the case law both point to the
3 central thrust of 290 being different than the
4 central thrust of 293 and we have had various
5 interpretations sought to be put on section 293
6 but none of them captures what the case law and
7 commentary says is the central thrust of section
8 290 which is the use of state sanctioned
9 ceremonies and that misuse entails fraud against
10 the state and sometimes against other spouses.
11 And I would like to turn here for a moment
12 just on that point to tab 3 of the condensed book
13 which is an extract from the Canadian text on
14 polygamy by professor bailey wick and Amy Kaufmann
15 turning to the second page on that tab the
16 highlighted portion they say the offence this
17 bigamy is the ceremony itself which would I see be
18 valid to create a state sanctioned union is
19 misused as one judge put it the essential gravity
20 of the offence remains the deception which the
21 bigamist exhibits in some cases where he has said
22 nothing about the original marriage to the new
23 partner but perhaps more importantly which he
24 exhibits this all cases by the falsification of
25 state records in the application for a marriage
26 license.
27 And the footnote is not shown on this page but
28 it goes to an unreported decision of Mr. Justice
29 Borens [phonetic] in an Ontario case called friar
30 and this is picked up on as well at the next tab,
31 the Attorney General of Canada's closing
32 submissions which I have extracted and at
33 paragraph 242 which is on the second page under
34 that tab the Attorney General of Canada says the
35 bigamy provision is focussed on attempts to enter
36 into multiple marriages by which of a civil
37 marriage process and turn the page to 244 in
38 Canada the commission of bigamy used I think here
39 for section 290 state in that the state's marriage
40 requirements are employed by a marriage that is a
41 nullity. And carrying on to the end of that
42 paragraph it's not highlighted the bigamy offence
43 helps to protect the state from having invalid
44 marriages registered and counsel counted for
45 official purposes and relied upon for multiple
46 purposes like retaining survivor benefit so that's
47 a justification for 290 regardless of 293
 5

1 existence.
2 And so as not to get too caught up on the
3 wording of section 293 or other countries that
4 have section 290 like provisions whatever their
5 statutory wording happens to be we're not aware of
6 any comparable western democracies outside Canada
7 and parts of the United States that actually
8 prosecute people for being part of multi spouse or
9 multi partner family units and I want to turn here
10 to one English criminal case that Professor Cook
11 referred to and that's the case called R v. Taylor
12 and I have got that at tab 2.
13 And we had some discussion about this in
14 cross-examination and it's in her report and she
15 said this this case is one that makes clear that
16 English law captures polygamist unions but the
17 case is one I think it's apparent from looking at
18 it that it has nothing to do with the formation of
19 being in a multi spouse family unit as would be
20 the sort often captured by section 293 and just
21 turning to the second page of that case while the
22 facts are aren't fully set out it's apparent that
23 this person, the accused established a pattern of
24 marrying and either losing track of or leaving an
25 earlier wife before going on to the next and it
26 says in 1925 the appellant was married to his wife
27 who is still you a life at the present proceedings
28 but who had not been seen by the appellant since
29 1927 in. 1927 the appellant went through a form
30 of marriage with with another woman and in 1942
31 having left that woman he married a third and then
32 skipping down to the next paragraph he went two
33 more ceremonies of marriage and was charged with
34 bigamy and the question in that case really
35 resolved around the number of time he could
36 successively do this and what happens in applying
37 the statute in cases like that. Not the formation
38 of some consolidated unit and what it referred to
39 was the wording of the English legislation English
40 legislation that is similar to section 290 and
41 going down the page at the note at the bottom that
42 legislation says who so ever being married shall
43 marry any other person during the lifetime of the
44 forevermorer husband or wife shall be guilty of
45 felony and then it's got an exception there which
46 the case really revolved around providing nothing
47 in the section contained shall extend and then the
 6

1 top of the next column to any person marrying a

2 second time whose husband or wife shall have been
3 continually absent from such person for the space
4 of seven years and shall not have been known by
5 such person to be living within that time and the
6 case really revolved around the application of
7 that defence where there were successive marriages
8 in between the first marriage, the lawful marriage
9 and the one that the person was charged with.
10 And just turning to the top of page 372 in
11 that case all the court dealt with in terms of
12 polygamy versus bigamy was the number of marriages
13 nothing else and the court said it's clear from
14 that section what is aimed at there what is I may
15 call polygamy not merely bigamy second marriage
16 but any number of marriages at the top of the next
17 page, 373 the Court going on to say when a court
18 is dealing with account charge polygamy it's
19 concerned with the allegation on a particular day
20 an a man went through a ceremony of marriage when
21 thinks lawful wife concerned with two ceremonies
22 polygamy in which of which the charge is made.
23 So it's really -- it's about the number that
24 are caught and not to get too hung up on the
25 bigamy as in bi but nothing more. Very much the
26 scenario that could be caught by 290.
27 Now, I would like to spend just a few moment
28 on the United States and here just for reference
29 although I'm no will turning to it I'm summarizing
30 part of the discussion at pages 13 to 17 and 23 to
31 92 of our submission. And what we say there is
32 that a minority of US states 11 which includes
33 Utah and Texas, have criminal prohibitions that
34 Professor Turley our witness whose report is at
35 Exhibit 74 finds the closest to the conjugal union
36 provision in section 293. And those 11 state have
37 statutes that include cohabitation like concepts
38 so in Utah it's a person who is already married
39 can be guilty of bigamy he or cohabits in living
40 under the appearance of being married with someone
41 other than his spouse. It's also possible in
42 those statutes to be found guilty of bigamy for
43 purported to marry someone and that was the
44 case -- or that was the wording that was examined
45 in the home case. Mr. Home was charged both with
46 cohabiting and purporting to marry but it's
47 evidence from the home case the interpretation of
 7

1 purporting to marry gets coloured by the fact the

2 cohabitation prong is in the offence as well and I
3 don't have that extracted in the condensed book
4 but I just want it to have -- I just want to
5 include a reference in that case and the home case
6 is at the tone general of BC's supplemental
7 authorities at volume 5, tab 48. And at
8 paragraphs 22 and the majority judgment and 139 of
9 the minority or defending judgment of Chief
10 Justice due ram. The spire play between the.
11 If I can turn to tab 5 and at tab 5 is primer
12 that has been issued by the offices of the
13 Attorney Generals of Utah and Arizona as a guide
14 book for law enforcement and human services agency
15 who offer assistant to fundamentalist Mormon
16 families and this is the August 2009 edition.
17 Will if I could turn to page 7 of that it's
18 numbered at the top right-hand corner.
19 The offices of the attorneys general and the
20 other contributors set out a definition of bigamy
21 here which makes evident how unusually Utah is.
22 They say generally it means marrying a person
23 while you're still legally married to another.
24 Bigamy is prohibited in all of the states. Also I
25 will c as bigamy a married person's cohabiting
26 with an additional partner or purported to have an
27 additional wife each when there is no you a tempt
28 to legally form lays through the state process.
29 The application of the statute has been
30 controversial hence cases like home and the
31 statute has been challenged although unsuccessful
32 in three recent high court cases.
33 Now I will return to the primer in a little
34 bit later when discussing history of prosecutions
35 but I just want to want to leave off on one point
36 before going on. We have heard about one
37 conviction in the United States the Reynolds
38 decision that use aed section 290 like language
39 and I just want to point to three things in
40 relation to that. The first is that there was no
41 argument in the case at all about whether or the
42 kind of form of marriage that was needed to breach
43 the statute. There was also no argument in the
44 case about the legal effect that Mormon marriage
45 would have had absent the statute and there was
46 also a recognition despite Reynolds by the Federal
47 Government that the wording just wasn't good
 8

1 enough to secure convictions and so there was

2 dramatic expansion in the wording of the Edmunds
3 Act in 1882 and I won't go there but we detail
4 that starting at paragraph 73 of our argument. I
5 said I would come back to the history of
6 prosecutions and I'm going to deal with that in
7 the context of international law because as
8 Professor Cook said one of the measures of
9 international customary law is the degree to which
10 states have prosecuted but just turning first to
11 the broader international context.
12 There's a suggestion of course it's been made
13 that Canada would be offside international law by
14 repealing section 293 and I say that's just not so
15 and I summarize here some of what is found at
16 pages 174 to 183 of our submission. And I have
17 included that for reference at tab 6 but I'm just
18 going to deal with it more generally.
19 My point here isn't that what is said at the
20 international level can't be considered in a broad
21 sense. Of course it can. But particularly when
22 it comes to criminalizing individuals and
23 particularly when it comes to criminalizing them
24 for the sort of relationship that we say section
25 293 extends it's partner to look at what is said
26 in the international level and by whom.
27 And so turning first to treaties. Professor
28 Cook said that these are the top of the hierarchy
29 of sources of international law. No treaty that
30 she says is relevant to the issue of polygamy
31 mentions polygamy, mentions polygamy and I don't
32 say that's determinative of course international
33 treaty bodies can can can interpret treaties but I
34 do say it's something. That's the expression that
35 states most directly have of their will to bound
36 by an international or at the international level.
37 Now, in interpreting the treaties no treaty
38 body has dealt at all in any of its general
39 comments with the issue of polyandry and it's not
40 dealt with the issue of polyamoury and here
41 perhaps I just will turn to refer to Professor
42 Cook largely's evidence at paragraph 429 which is
43 at the second page under tab 6. She says
44 international law human rights law only deals with
45 polygamy in a sex identified way that is one man
46 taking many wives. And continuing on to
47 sub-paragraph B none of the relevant treaty bodies
 9

1 has made in any statement on the issue of

2 polyamoury and Professor Cook herself doesn't deal
3 with polyamoury other than to distinguish it from
4 polygamy which she sees as a mover gender unequal
5 side of the arrangement.
6 Now, turning just further down the page at
7 paragraph 430 the centre for reproductive rights
8 which is a centre to which Professor Cook has some
9 reference in her report and which she is a
10 director of says none of the treaty bodies that
11 have examined polygamy and by default that must
12 mean patriarchal polygamy none of that has been
13 examined comprehensively while I don't say dismiss
14 their work because of that it does go to the
15 weight to which it should be treated.
16 Two international treaty bodies have issue
17 general comments on the issue -- or I shouldn't
18 say on the issue they issued some comments that
19 deal with some issues that deal with the issue of
20 polygyny and that are unfavourable to polygyny
21 although again by default that must patriarchal
22 because that is the only thing that has been
23 studied and that not comprehensively and I will
24 get back to what is being said or not said in
25 terms of content by the bodies but I want to pause
26 and say how general comments can can be applied
27 and agains an I said international commentary is
28 said that can be considered in a broad sense but I
29 say it's particularly problematic for the Canadian
30 government to be using here as justification for
31 criminalizing its citizens general comments when
32 it's previously stated publicly that it doesn't
33 consider general comments to be authoritative.
34 And has very much limited the weight that
35 should be attributed to them and I turn here to
36 tab 7 which is an extract from a text that the
37 Attorney General of Canada cites at paragraph 270
38 of his submission and quite fairly it it does
39 consider some positive -- or it does set out some
40 positive comments on considering general comments
41 in Canadian law but what I want to turn to is the
42 bottom of page 175 and this is in the context of a
43 discussion in this text of the human rights
44 committees recommendations general comments and
45 the human rights committee is one that has issued
46 a comment on polygyny or with a few sentences on
47 polygyny in this case.
 10

1 So turning to the bottom of the page the

2 Canadian government has declared that it it does
3 not consider can general comments to be
4 authoritative interpretations of government
5 obligations legal or otherwise. Rather the
6 general comments merely represent the views or
7 interpretations of committee members and their
8 independent capacities. The general comments have
9 not been endorsed by Canada or other states
10 parties to the covenant and they do not enjoy any
11 status in law. And just 1 going down to the
12 footnote on this it said the statement was made by
13 a Canadian delegation in the context of the
14 international covenant on economic social and
15 cultural rights but clearly applies to general
16 comments issued under the other treaties too.
17 Now, in this case specifically relating to
18 polygyny I would like to just turn back briefly to
19 tab 7 or sorry to tab 6 and in particular
20 paragraph 432. Because it's apparent that outside
21 this reference Canada hasn't conducted itself in a
22 way that would suggest it has any belief that it
23 has an obligation to address polygyny in any way
24 whatsoever. And just turning part way down the
25 paragraph to paragraph 432 partway through that.
26 There's a quote about six lines from the
27 bottom. Professor Cook says country reports those
28 are country reports to treaty bodies are meant to
29 detail the legislative judicial administrative and
30 other measures states party versus taken to give
31 effect to the treaty. However, country reports
32 from Canada appear to contain no mention of
33 polygyny at all. Professor Cook's expert report
34 doesn't refer to any report from Canada on
35 obligations with respect to polygamy. Professor
36 Cook said she checked the concluding observation
37 observations filed in response to Canada's filed
38 report and found nothing with respect to polygamy
39 and this seemed to be a continuing past practice
40 in a co-authored report from 2006 Professor Cook
41 referred to Canadian country reports continuing to
42 neglect to mention polygyny as an area of concern
43 as well as an ongoing government initiative.
44 And so I say again it's not that the
45 international level need be ignored but both in
46 terms of weight and in terms of content of
47 obligations I say it's useful to look at what what
 11

1 Canada has done with what we are are being

2 presented with now when it comes to actually
3 acting.
4 Now, turning to what international bodies have
5 actually said or with rather what they have not
6 said, none of them has said that a country must
7 enact or preserve some version of section 293.
8 We're not aware of any comparable western
9 democracy being criticized for not having some
10 form of section 293 or even for not having a
11 polygyny specific version of section 293.
12 There's no suggestion in the international
13 materials that we have seen that by not having
14 section 293 or by not prosecuting multi partner
15 family unit their members any of England France
16 Belgium Luxembourg are not complying with
17 international law or eventual international
18 trends. There's no suggestion like to at all.
19 And to the extent there's been any
20 encouragement to prohibit polygyny which is a word
21 that seems to keep coming up even if that
22 encouragement is taken up it needn't by a criminal
23 prohibition. It's clear that as long as measures
24 are effective and as say in Part VII of our
25 countries have a great deal of flexibility in
26 interpreting or implementing any obligations they
27 do have and a finding in this reference that
28 section 293 is unconstitutional wouldn't do
29 anything in terms of requiring Canada to lift or
30 preventing it from implementing the kind of family
31 law or marriage law prohibitions to which
32 Professor Cook also refers as prohibitions in her
33 report.
34 The reference has nothing to do with
35 legalizing polygamy. Had has nothing to do for
36 example with the civil marriage act which very
37 heard about repeatedly which provide is the lawful
38 union of two person to the exclusion of all
39 others. It simply rerelates to criminal lie ago
40 or dough criminilization. Interrupting as finally
41 as a component of the international law
42 discussion.
43 International custom dealt with treaties is
44 also a source of international law sore cook says
45 and prove core cook says customary is evidenced by
46 consistent and uniform state practice based on be
47 an understanding that a practice is required by
 12

1 law and she says among the sorts of evidence you

2 can look at are national legislation and the
3 degree to which state versus prosecuted an offence
4 so turning to those two components as I say state
5 practice is evidence or as Professor Cook in part
6 by legislation but apart from somewhat the United
7 States or parts of it no comparable western
8 democracy has a prohibition like section 293 by
9 the degree to which states have prosecuted an
10 offence but prosecutions even Canada under section
11 293 are sparse and as far as we know the only
12 conviction of someone in a multi spouse or multi
13 partner family unit for or under section 293 for
14 that fact is the bare shin bone case which is over
15 100 years ago and that's a distinction to cases
16 Mr. Dickson dealt with and Mr. Macintosh may
17 return to like toll hearse which have quite a
18 different fact scenario.
19 Even in those parts of the United States that
20 is somewhat comparable to section 293 we're not
21 aware of prosecutions in polyamoury cases and even
22 in Utah with its broad wording the general policy
23 is not to prosecute people simply for the fact of
24 having an adult consensual polygynous
25 relationship.
26 And here I would like to turn to tab 8 of the
27 condensed book which contains an excerpt from the
28 recent of the US case Professor Cook Bronson and
29 Swensen and turning to the second page the
30 headnote in that case it was an an attempt to have
31 a constitutional challenge of the criminal law
32 prohibition in Utah but it was brought by people
33 hadn't actually been criminally charged so there
34 was an issue at the Utah Supreme Court level of
35 standing to bring this challenge at all and to put
36 this in context it numbered 5 of the headnote it
37 says husband and wife and husband's fiance who
38 were never charged prosecuted or directly
39 threatened with prosecution did not fear a
40 credible threat of prosecution and thus could not
41 satisfying requirements for constitutional
42 standing to seek perspective relief based upon the
43 allegeded constitutionalty of Utah's criminal
44 prohibition of polygamy and I will go to the facts
45 that ununderpin that conclusion in just a moment.
46 I just -- before leaving that page though at the
47 left-hand column the holdings part just in terms
 13

1 of the use of the wording of prohibition it's

2 clear there there can be two sorts of prohibitions
3 civil prohibition which the plaintiffs didn't
4 frame properly so couldn't challenge and that was
5 in relation to their refusal to give civil effect
6 to polygamous marriages and the criminal
7 prohibition which is was a separate issue.
8 So turning to the facts why the plaintiffs
9 didn't have standing on the criminal prohibition
10 at page 3 the court says and I note this is a 2007
11 case but I will return to in a moment to evidence
12 to of the fact that the policy continues of
13 non-prosecution continues.
14 So on the left-hand column the court says or
15 refers to the policy statement of the Utah
16 Attorney General's office that an it has decided
17 to focus law enforcement efforts on crimes within
18 the polygamous communities which involve child
19 abuse domestic violence and fraud rather than
20 enforcing the criminilization prohibition
21 involving adults.
22 And the footnote at the bottom of the page the
23 Utah general Attorney General recent made to the
24 Utah Supreme Court a representation of
25 prosecutorial selectivity similar to the one found
26 in the primer. Further the state itself has
27 indicated it does not prosecute those engageded in
28 religiously motivated polygamy under the criminal
29 bigamy statute unless the person has entered a
30 religious union with a girl under 18 years old and
31 returning to the body of the case again at the
32 bottom of the left-hand column plaintiffs who are
33 again seeking standing rely upon two recent state
34 prosecutions green and home to justify the
35 objective reasonableness of their fear of
36 prosecution however the defendants in these
37 prosecutions have committed independent crimes in
38 connection with forming their respective
39 polygamous relationship and those are set out
40 there. The case therefore involve remarkably
41 different facts than those present in this
42 legislation litigation where no independent crime
43 plaintiffs are all adults and profess a desire to
44 enter into a consensual polygamous relationship.
45 And I note there that the Bronson case here
46 mentions home and green and in the non-highlighted
47 portion of the right-hand column but still toward
 14

1 the top of the page it's clear that the state

2 there not only identified for prosecution people
3 who had engaged in under age marriages remarkably
4 different facts that the said but was able to
5 prosecute and convict them of independent crimes
6 the sort of independent crimes and charges to
7 which -- or with which we deal at part 9 of our
8 submission and for which we say a charge of --
9 under section 293 shouldn't be a proxy so here the
10 court is saying see home noting that defendant was
11 charged and convicted of bigamy and unlawful
12 sexual conduct with a minor and green noting
13 defendant was charged and convicted not only of
14 bigamy also criminal non-support and rape of a
15 child.
16 And as I said, this is a 2007 case but the
17 policy has continued onward and just turning
18 briefly back to tab be 5 which is the primer that
19 the Utah attorneys general and the Arizona
20 Attorney General have issued and that's updated to
21 August 2009 and turning to the page of that bigamy
22 is illegal in Utah and plural marriages are
23 prohibited in the constitutions. However both
24 states have decided to focus law ens forment
25 efforts on crimes within the polygamous community
26 that is involve child abuse, domestic violence and
27 fraud. Laws regarding these issues will be
28 strictly enforced and they note there that the
29 crimes can also be found in mainstream society.
30 Turning to the next page the primer says at
31 the bottom of the page this material doesn't
32 presume that more crimes are committed in
33 fundamentalist communities than elsewhere. Rather
34 that victims in this culture may face more
35 barriers when seeking help and on the next page at
36 page 5 the primer says and this is the
37 jurisdiction or the jurisdictions with probably
38 most experience with polygamy in North America.
39 It says at paragraph 1 do not generalize.
40 Recognize that substantially diversity exists
41 within and between fundamentalist Mormon
42 communities families and couples. The occurrence
43 of a particular event or condition in one specific
44 family or community does not indicate that it is
45 inevitably present or likely in other families and
46 communities and I included as well page 6, the
47 next page as well just to note at the third to
 15

1 last paragraph there that there's a reference to

2 the yearning for Zion raid. This is well after
3 that raid and the child services report that we
4 have heard about.
5 And I have also included at tab 9 just an
6 excerpt from the Utah general attorneys continuing
7 website which reflects the same policy of on
8 prosecution.
9 So I have just two last points on the
10 international context. As I said before Professor
11 Cook said that state practice for the purpose of
12 establishing a customary international law on a
13 subject requires consistency and uniformity and
14 certainly I wouldn't say that that needs to be
15 perfect consistency or uniformity but it is of
16 some note of the practice of about 50 countries in
17 the world not an insignificant number is to
18 actually legalize polygamy much further than this
19 reference would go toward and just as a reference
20 that's at paragraph 43 (b) of our submission.
21 And just as a concluding general point, in
22 terms of Canada's place on the international
23 stage, certain of the defenders in this reference
24 have sought to justify section 293 including the
25 criminalization of women who consent to be part of
26 polygamous relationships for a variety of reasons
27 and those reasons include as Mr. Macintosh will
28 get to they're supposeded failure to have
29 distributed themselves mock more men and I say
30 that it's this kind of reasoning not the repeal
31 section 293 that would deeply offend other western
32 democracies and that would send entirely the wrong
33 message about the sort of values that Canada
34 stands for to the international stage.
35 And thank you
36 THE COURT: Thank you.
37 MS. HERBST: Thanks.
38 THE COURT: Mr. Macintosh.
39 MR. MACINTOSH: Chief Justice, Madam Registrar has
40 placed before you a white-covered brief. Thank
41 you.
42 I will address the argument under section 15
43 of the charter that marital status, equality
44 rights are violated by section 293 and I will then
45 speak to the section 1 charter analysis of section
46 293 in accordance with the interpret tiff guide
47 lines from oaks and Hutterian Brethren but before
 16

1 I address those two arguments Chief Justice I want

2 to make one supplementary point regarding the AG
3 Canada's submission to you that the phrase in 293
4 the phrase any kind of conjugal union is to be
5 interpreted narrowly, is to be confined so as to
6 require some form of marriage ceremony albeit a
7 ceremony not recognized by law and the Ontario
8 Court of Appeal's judgment in Tulhurst in 1937 is
9 relied upon by the AG Canada in this regard and I
10 want to add only this, in my respectful submission
11 Tolhurst correctly decided but the point is that
12 the ratio of Tolhurst does not purport to
13 determine the scope of the phrase follow toll
14 hearse is a brief decision but Tolhurst was not
15 addressing a polygamous fact pattern. The man and
16 the woman in Tolhurst were living together common
17 law when they were married to other people and
18 throughout the charged on the polygamy provision
19 finding the section was not addressing that
20 conduct because as the court found the section was
21 aimed at.
22 And and Tolhurst is at tab 1 in the white
23 brief is the decision is essentially on the second
24 page at that tab at page 320 of the report.
25 Toward the bottom of the page I've highlighted the
26 essence of the decision as I read it and the
27 latter part of what is highlighted is key here.
28 Where the court observed correctly I say the
29 section is headed polygamy and spiritual marriages
30 and the Court goes ton say was aimed it at the
31 prohibition of polygamy under any guise and so
32 when the court said that any kind of conjugal
33 union as it did earlier when the Court said that
34 any kind of conjugal union predicates some form of
35 union under the guys of marriage it did so in the
36 context of non-polygamous conduct which the court
37 was addressing. The Court as I say having
38 correctly found that the section was aimed an at
39 something different.
40 The Court was aimed at polygamy and I simply
41 submit that in the context of this constitutional
42 reference the Tolhurst decision is one of those
43 cases which should be read or needs to be read in
44 the light of lord Hallbury's well-known caution in
45 SCOMBIN Laytham and I have placed [phonetic] it at
46 tab 2 in the white book and there I reference are
47 the second page of that tab westbound as I
 17

1 observed every judgment must be read as applicable

2 to the particular facts proved or assumed to be
3 proved since the generality of expressions which
4 may be found there are not intended to be
5 expositions of the whole law but are governed and
6 qualified by the particular facts of the case in
7 which such expressions are to be founded other is
8 that a case is only an authority for what it
9 actually decides and finally Chief Justice before
10 I go on to the section 15 argument finally
11 regarding Tolhurst the phrase found in the reasons
12 quote some form of union under the guise of
13 marriage would be undeniably vague in any event
14 and I would ask rhetorically could the required
15 celebration for finding criminality be a dinner at
16 a restaurant with ten guests present. Would it be
17 a dinner with ten guests where vows were publicly
18 state would there need to be a which can priest or
19 some other presiding and what would he or she need
20 to say some form of union under the guys of
21 marriage I turn chief just to section 15 and that
22 will relate to three decisions of the Supreme
23 Court of Canada with Miron and Walsh Miron and
24 Walsh are in the white brief and we presented to
25 in the green cover if you can turn to volume 1 and
26 the introduction to this section 15 an argument is
27 found at page 95 in part 4. That begins with
28 paragraph 238. And there we have of course
29 section 15 subsection (1) quoted to begin and in
30 239 our submission that in criminalizing all
31 polygamy section 293 discriminates by treating all
32 polygamists as married in the condemnation of the
33 criminal law regardless of the circumstances of
34 any particular polygamous relationship or any
35 particular participant. The test for the claim
36 under section 15 was set out in Withler having two
37 parts is it the law create a distinction that is
38 based on an immune rated or analogous ground we
39 would be arguing if anything analogous ground and
40 he two does the distinction create a disadvantage
41 by perpetuating prejudice or stereotyping. I
42 submit 293 discriminated on two enumerated
43 analogous grounds and the marital status one is
44 addressed beginning later on at paragraph 249 in
45 the tab in front of you and in that paragraph I
46 submit that whereas the law imposes no penalty
47 whatsoever on anyone in a monogamous relationship
 18

1 or on anyone who remains single it criminalizes

2 all polygamists. The law singles out one marital
3 form polygamy and imposes on those who practice it
4 the most severe sanction available in our society
5 criminalization and potentially incarceration and
6 so doing the law perpetuates prejudice against
7 polygamists and treats them as stereotypical
8 manner by assuming all polygamous relationships
9 are are bad and the two step Withler test is
10 summarized in my paragraph 250. First does the
11 law section 293 does it create a distinction on a
12 prohibited or analogous ground and second if so
13 does the distinction create a disadvantage by
14 perpetuating prejudice or stereotyping.
15 And the first of the part of the Withler
16 analysis begins there and at page 99 I reference
17 Miron and I reference Walsh and there in the white
18 book Chief Justice at tabs 3 and 4 and in both
19 cases as the court is aware the -- the court found
20 that common law partners were denied benefits
21 given by the law to state married spouses.
22 And in our argument at paragraph 252 as with
23 the common law marriage analysis in Miron and
24 Walsh I say in 252 section 293 also discriminates
25 according to forms of conjugal relationship
26 although on a different basis instead of
27 distinguishing with respect to whether or not a
28 conjugal relationship has been formalized through
29 marriage 293 distinguishes between the number of
30 participants in a conjugal relationship. It says
31 there may be two but there may not be more.
32 And then this 253 what is there is a
33 distillation in a sense of what Justice McLachlin
34 as she was then said in Miron as to the tests or
35 the tools if you will for analysing the first part
36 of the Withler test and in her paragraph 151 she
37 asks first, first discrimination on the basis of
38 marital status touches the essential dignity and
39 worth of the individual. Specifically it touches
40 the individual's freedom to live life with the
41 mate or in this case mates of one's choice in the
42 fashion of one's choice. This is a matter of
43 defining importance to individuals. And then her
44 second indicator is at page 100 of the argument in
45 her paragraph 152 she wrote second, marital status
46 possesses particulars often associated with
47 recognized grounds of discrimination under 15 (1)
 19

1 of the charter. Persons involved in an unmarried

2 relationship constitute an historically
3 disadvantaged group. That of course being the
4 fact pattern she was addressing. She goes on.
5 There is ample evidence that unmarried partners
6 have often suffered social disadvantage and
7 prejudice. Regarded as less worthy. The
8 disadvantages inflicted on unmarried partner have
9 ranged from social ostracism through denial of
10 status and benefits. In recent years the
11 disadvantages experienced by people common law she
12 observes have greatly diminished I would pause
13 here and say that is certainly not the case with
14 polygamy. She goes on those living together out
15 of wedlock no locker married to carry the scarlet
16 letter nevertheless the historical disadvantage
17 associated with this group can want be denied.
18 And the third of had her indicators on the
19 first part of the Withler analysis was in her
20 paragraph 153 she said a third cake particular
21 sometimes associated with the analogous grounds
22 distinctions founded on personal immutable
23 characteristics in theory the individual is free
24 to choose whether the marry or not to marry and
25 practice however their reality may be otherwise
26 and she lists some factors that will play into
27 that.
28 The law she goes on financial religious or
29 social constraints and she says in short marital
30 status often lies beyond the individuals effective
31 control. And I would say Chief Justice that those
32 three indicators are those three tests found to
33 have application with regard to common law
34 relationships in Miron and in Walsh have doubled
35 the application if I can put it that way when the
36 context of polygamy is examined in our society
37 today.
38 And in my written argument at paragraph 25 a
39 55 is a link annual if you will will of the first
40 of her three indicator, justice McLachlin's
41 paragraph 151 and I submit there can be no serious
42 question that to participants in polygamous
43 relationships those relationships are central to
44 their identities. Their dignity and their sense
45 of self worth. And going on for all of the
46 polygamists not just FLDS and not just
47 fundamentalist ability to live in a family with
 20

1 the people they love is essential to them as these

2 examples from the polyamorous witnesses
3 demonstrate and there several of the polyamorist
4 deponents in this case are quoted from from their
5 affidavits which I don't read now but I adopt as
6 part of -- as part of this submission.
7 And in the second part of the Miron test Chief
8 Justice at my page 102 at paragraph 56, 25 a 6 I
9 address chief -- Justice McLachlin's second part
10 in 256 through to 260 and there she was addressing
11 and I'm addressing in those paragraphs historical
12 and present disadvantage for those who were in
13 polygamous relationships in common you la in Miron
14 and let me speak to that by asking you if I could
15 to note two or three places in the material that
16 we have submitted that would touch on that. And
17 in the written argument at tab 6 where we address
18 the harms caused by 293 if Your Lordship can can
19 turn to page 252 and you can see there at
20 paragraph 539 evidence given by witness 8 who said
21 having bad law on the books gives those who would
22 mistreat others permission to do so noting that
23 the criminal prohibition against polygamy gives
24 people permission to operate from stereotypes
25 bigotry and hate. Makes them feel free to treat
26 us rudely. Make slurs try to intimidate and do
27 other things that if it were any other minority
28 they would be reprimanded called on to apologize
29 or accused of hate speech. Some of professor
30 catch bell's interview participants expressed
31 their beliefs incidents of being spat on and
32 verbally assaulted would cease if polygamy were no
33 longer a marry bachelor an independent
34 fundamentalist Mormon and former MRIs describes
35 anti-polygamy law as validating bigotry and hatred
36 towards our families encouraging people to use the
37 laws as an excuse to malign and abuse our families
38 at whim. Ms. Bachelor attests that her children
39 have been bullied at school and in her
40 neighbourhood, her family has been subjected to
41 vandalism on our home our vehicles our fences or
42 trees and had condoms and other taste lest items
43 left in you our mailbox and happened they have
44 experienced threats harassments and insults and
45 they have been demeaned Ms. Bachelor in Tai Kwan
46 Do in part to teach themselves to defend
47 themselves beneficiary beneficiary any FOESHL a
 21

1 would tend to broaden and intense as I if I the

2 animus practising polyamoury debt debt who lives
3 in a triad with two men supports those who have
4 criticized and rejected her relationship and
5 accused them of wrongdoing or worse of bringing
6 harm to themselves or their children. And also I
7 would ask you to note below that Chief Justice at
8 our paragraph 541 part of what was said by
9 Ms. Darger when she testified when she spoke to us
10 about abuse by outsiders and she attested that the
11 inability to be public results in a lack of
12 protection that increases our vulnerability and
13 the people they know who have had abuses committed
14 against them that would qualify as hate crimes
15 decided to bare it rather than risk being found
16 out or prosecuted by reporting the offence. Asked
17 by the cross-examination of abuses that could be
18 made public if you're lifestyle was decriminalized
19 she said and I will read a small part of that.
20 She said my sister wife's parents woke up one
21 morning and their grandma and grandpa now so they
22 don't have children living at their home and spray
23 painted polygamous bitches" on the driveway and
24 the mom was very afraid. She called her children
25 they came over to look at it and said well it's
26 call let's call the police and let's report it had
27 the dad said no we're not going to we just pay.
28 We'll have it removed and you know move on with
29 our life. And last if I may, Chief Justice ask
30 you to turn back -- or sorry turn ahead in the
31 argument to page 268 and that's in tab 7. And
32 that's includes a sub-paragraph paragraph C of
33 paragraph 569 and part way down in that paragraph
34 I reference the law reform commission of Canada as
35 described by the law reform commission of Canada
36 in its working paper on bigamy in 198 polygamy is
37 already a marginal practice. And then we quote
38 from another -- from writer and that's footnoted
39 at 771. The woman Judith Stacey book to be
40 publisheded by New York university paradox of
41 polygamy and modernty she wrote unlike in certain
42 other countries polygamy was never part of a
43 cultural mainstream and remains deeply stigmatised
44 and I would respectfully submit that the evidence
45 in this case demonstrates overwhelmingly that
46 that's a valid it if not conservative statement.
47 And then I would go back in the written
 22

1 argument to page 104 to paragraph 261 and with

2 regard to the issue of immutable characteristic
3 which was the third of her indicators in paragraph
4 153 in Miron. And along with the characteristic
5 of being an unmarried polygamy bears the third
6 marker of analogous ground that the distinction is
7 founded on personal immutable characteristics and
8 obviously neither polygamy nor unmarried
9 conjugality is immutable to the extent that
10 certification wall orientation is but as Justice
11 McLachlin stated in Miron marital status often
12 lies beyond the individual's an effective control
13 and further down some of the polyamorous witnesses
14 how they were in one relationship they fell in
15 love with someone else. While some may leave or
16 cheat on their first partner for these witnesses
17 those were not so they were drawn into polyamoury
18 and on the next page, page 105 paragraph 263 I
19 submit fundamental Mormons are drawn to polygamy
20 they believe that polygamy will allow them into
21 the highest level of heaven essentially polygamy
22 will allow them to be spiritually fulfilled and
23 down in paragraph 265 toward the bottom of that
24 page I submit partway through that paragraph every
25 polygamist relationship that a participant does
26 not wish to leave is truly will immutable for the
27 purposes of section 15. It is of such importance
28 to the participants that they would suffer the
29 laws disadvantages rather than give it up.
30 And in my submission whens kept in mind that
31 the Supreme Court 6 Canada found common law
32 marriage common law relationship to be immutable
33 in this context of this constitutional analysis
34 again I would say if that is so polygamy is much
35 more so with the social and religious drivers that
36 are linked to polygamy and I would say that I
37 don't know if there was a listing as among
38 homosexual relationships polygamous relationships
39 and common law relationships as to immutablety but
40 certainly polygamous relationships are more so
41 than common law would be my simple point.
42 Now in the written argument Chief Justice we
43 turn to the second part of the Withler analysis,
44 the second step in Withler at page 106. And
45 submit that the criminalization of polygamy is
46 perpetuating prejudice and its perpetuating
47 stereotyping. And I would submit here Chief
 23

1 Justice in this sense 293 is precisely the same as

2 the law against homosexual sex which was struck
3 down in Canada 42 years ago because only then the
4 social historical context is difficult to perhaps
5 keep fully in mind but I would submit only then
6 could gays and lesbians begin to live a life with
7 dignity and that links to what was said by justice
8 Yacobuchi in Law v. Canada which I quote in
9 paragraph 268.
10 And he said this in part. He said it may be
11 said that the purpose of 15 (1) is to prevent the
12 violation of essential human dignity and freedom
13 through the imposition of disadvantage
14 stereotyping of political social prejudice and
15 further on he said affects different shale
16 treatment between individuals or groups will
17 violate this fundamental purpose with those who
18 are subject to differential treatment fall with
19 within one more or enumerated analogous grounds
20 and the differential treatment he goes on has the
21 affect of perpetuating or promoting the view that
22 the individual is less capable or less worthy of
23 recognition or value. As a human being or as a
24 member of Canadian society.
25 And on the next page, page 107 quoting from
26 him further he said human dignity is harm when
27 individuals and groups are marginialized ignored
28 or devalued and is enhanced when law is recognized
29 the full place of all individuals and groups
30 within Canadian society human dignity within the
31 meaning of the equality guarantee and he goes on
32 concerns the manner in which a person legitimately
33 feels when confronted with a particular law.
34 And if I may just reference our analysis of
35 that beginning at page 106 and -- sorry, at page
36 108 in the argument and just reference these by
37 way of concluding remarks on the section 15
38 analysis.
39 In 272 at the top of 108 I submit that it is
40 clear beyond debate that polygamists have
41 historically suffered disadvantage. In 273 I
42 submit in part part way down through
43 criminalization the state announces that the
44 impugned activity is unworthy of respect and
45 indeed merits condemnation. 274 I submit the
46 criminalization of polygamy has been used to
47 target groups that already disadvantaged. The
 24

1 clearest examples of course are fundamentalist

2 Mormons and Aboriginal persons and then I will go
3 and what I'm going to speak to today over to page
4 112 and at paragraph 279 and I submit there that
5 293 plainly exacerbates the disadvantages suffered
6 by all persons in polygamous conjugal union.
7 Mr. Beneficiary beneficiary's affidavit is
8 referenced the fears that 293 causes him fears
9 [phonetic] that 293 will interfere with his tree
10 adds ability to care for harass daughter and he
11 fears prosecution. Fear that he is the biological
12 partner's daughter were in incapacitated likewise
13 as an American he fears that 293 may cause Canada
14 to deny him permanent residency or citizenship and
15 293 contributes in a number of ways to a lack of
16 positive legal or social recognition of his
17 relationship and I will just quote from what he he
18 said. Among these the most keenly felt by me is
19 my lack formal or universally recognized authority
20 to make decisions day an in the absence of her
21 other parents other concerns include the
22 possibility of a sack in medical emergencies and
23 the lack numerous other privileges advantages and
24 preferences provided to families by both private
25 and government actors.
26 I believe that the presence of 293 in the code
27 contributes to this lack of recognition and
28 furthermore it's removal or a clear declaration of
29 its invalidity is a prewick requisite of great and
30 other polyamorous families a second broad factor
31 from my paragraph 280 demonstrating that 293
32 amounts to substantive discrimination is that it
33 imposes a total ban on all polygamous relationship
34 regardless of whether that relationship is harmful
35 in any way. Further down 293 is the legal I am
36 bodiment of stereotyping. It says that all
37 polygamous relationships are criminal and all
38 polygamists are criminals.
39 And on the next page I submit at the top of
40 the page at the end of paragraph 281 Parliament
41 simply made no effort to distinguish between
42 harmful and beneficial polygamous relationships
43 rather it simply criminalized all polygamous
44 relationships. While the attorneys general and
45 their allies have alleged that polygamy causes or
46 is co-related to an a number of harms none of
47 these harms is an element of the offence of
 25

1 polygamy and liability for polygamy is not limited

2 in any way for the existence of any of these harms
3 and these particulars I will not read. Their
4 particulars that the court is familiar with now
5 and I'll go if I may Chief Justice to my written
6 argument to page 116.
7 Carrying on with the second part of Withler in
8 paragraph 285 a third hallmark substantive digs
9 cripple nation is it treats polygamy in a manner
10 that is wholly out of step with the laws
11 approached to other private intimate relationships
12 between consenting adults the law has generally
13 not punished certainly not criminalized despite
14 the enormous cost it can can entail nor does the
15 law prohibit group sex or swinging when it is
16 conducted in private at a broad level Canadian
17 society increasingly views sex as a private matter
18 to be interfered with only when there is abuse.
19 Canadian society is also recognized an increasing
20 diversity in conjugal relationship against these
21 developments the continued penal prohibition of
22 polygamy is highly anachronicity and the next page
23 in the written argument at the top of page 117 it
24 is lawful for a person to break a promise of
25 fidelity to his conjugal partner and have sex with
26 an unlimited number of sexual partners but it is
27 criminal for three consenting adults to consent to
28 forming a polygamous relationship together.
29 It is not criminal to engage in consensual
30 swinging or group sex if conducted in private but
31 it is criminal for them to form a conjugal union.
32 And at page 118 the incidence of serial
33 monogamy mass groin as I say in paragraph 292
34 quoting from professor whoa and in paragraph 293
35 along with the increase in serial monogamy of
36 course comes an increase in parents conceiving
37 children with different partners further down
38 spouses or partners with one or more children have
39 separated and one or both spouses have formed
40 subsequent conjugal relationships and have had
41 children despite attention of a child's eye does
42 not condemn and I should say certainly does not
43 criminalize practice but rather deems it to be
44 acceptable. There is also a greater incidence of
45 step parents stepchildren, step siblings professor
46 whoa gave evidence in that regard. Professor
47 Shackleford testified that residents with a
 26

1 stepfather or male parent substitute is once of

2 the best preDicktors abuse and Phil side. Which
3 evidence was unchallenged and indeed appears to be
4 entirely accepted by the AGBC. Despite the
5 seriously heightened risks of this arrangement
6 society again condones and again I would say does
7 not criminalize the practice of stepfathers living
8 with stepchildren and of course allows for the
9 adoption of children by non-relatives indeed the
10 notion of criminalizing this behaviour would be
11 regarded as loud carouse by any Canadian and in
12 295 what the law deems to be acceptable in our
13 society is set out. I will not read that but I
14 will say at 296 at the bottom that by contrast the
15 law criminalizes in 293 any three or more adults
16 who openly who nobly and consensually form a
17 conjugal union. At page 10 the law says
18 essentially that one may engage in sexual and
19 secretive polygamy but not open and committed
20 polygamy. It is not -- it is acceptable that is
21 it is not a crime to carry on an extra marital
22 affair but you are criminal as soon as you commit
23 to that relationship alongside your original
24 conjugal union and finally Chief Justice on this
25 part if I can turn to page 122. And in the
26 concluding remarks on the section 15 analysis I
27 say in paragraph 301 it is important as well to
28 keep in mind what these legal points mean to
29 participants in polygamy throughout the reference
30 the amicus was struck by the repeated evidence
31 from both sides of the case of children of
32 fundamentalist Mormon polygamous families being
33 anxious not to reveal who their parents were.
34 Almost every one of the AGBC's witnesses from
35 fundamentalist Mormonism testified about the
36 anxiety they felt as children when they knew they
37 had to keep of nature of the family secret or
38 their father could be sent to jail. Out of fear
39 of discriminatory -- of a discripple in an atry
40 provision they learned to lie to their friends and
41 teachers and Hyde their true family from society.
42 In a very real sense the law required them to
43 deny themselves to the world. And those are the
44 conclusions with respect to the submissions I make
45 Chief Justice concerning section 15 and I say that
46 taking the two tests in Withler taking the Court's
47 reasoning in Miron and Walsh and particularly in
 27

1 Miron the cases I submit overwhelming to have 293

2 addressed under the analogous ground marital
3 status and that the cases is overwhelming in my
4 respectful submission to find that section 15 (1)
5 has been violated on the grounds of marital
6 status.
7 And I turn Chief Justice to the section 1
8 analysis.
9 THE COURT: I think we'll take our break at this point.
10 MR. MACINTOSH: Yes, thank you.
11 THE CLERK: Order in court. Court is adjourned for the
12 morning recess.
13
14 (MORNING RECESS)
15
16 THE CLERK: Order in court. .
17 THE COURT: Thank you. Mr. Macintosh.
18 MR. MACINTOSH: Chief Justice. Thank you. The section
19 1 analysis begins in the second volume of our
20 written submissions in part 8, tab 8 and the white
21 brief I have handed up Todd oaks is at 5 and one
22 opens Oakes in some reluctance on how well-known
23 it is but at the same token that risks it being
24 taken for granted in certain respects and if I ask
25 to lieu observations briefly in tab 5 in the white
26 book and see how the court introduced us as it
27 were to the section 1 analysis and 135 using the
28 S.C.R. numbering.
29 THE COURT: Thank you.
30 MR. MACINTOSH: There towards the bottom of the page
31 after section 1 was quoted up at letter D the
32 Court began by reminding us of this section 1 has
33 two functions: first, it constitutionally
34 guarantees the rights and freedoms set out in
35 provisions which follow and on page 136 Chief
36 Justice said this at B, a second contextual
37 element of interpretation of section 1 is provided
38 by the words free and democratic society inclusion
39 of these words is the final standard of
40 justification for limits object rights and
41 freedoms refers the Court to the very purpose for
42 which the charter was originally entrenched in the
43 constitution. Canadian society is to be free and
44 democratic and toward the bottom of that page at H
45 section 1 provides criteria of justification for
46 limits on the rights and freedoms guaranteed by
47 the charter. These criteria impose a stringent
 28

1 standard of justification and finally for now at

2 page 137 at A the presumption is that the rights
3 and freedoms are guaranteed unless the party
4 invoking section 1 can bring itself within the
5 exceptional criteria which justify their being
6 limited.
7 And my submissions chief just under section 1
8 has four parts to them. And to begin I challenge
9 the government's characterization of what the
10 objective is in section 293. Because I submit
11 that the plain words in 293 allow for only one
12 conclusion that the only objective of 293 is to
13 preserve and protect monogamy and so and this
14 analysis if you will, jumps into the secular
15 analysis. This is assuming that we are not under
16 section 2A as to the purpose of the section being
17 religiously driven.
18 This is assuming that we're into a secular
19 analysis and the issue then is what is the
20 objective even on that basis. And what drives
21 this part of my submission is with the words
22 Parliament has used in 293. And if I'm right that
23 the objective of the section is to preserve and to
24 protect monogamy which I say I am because the
25 section makes it a crime to be otherwise but it
26 doesn't make anything else a crime. It just makes
27 it a crime that there's more than one mate. It
28 just make it is a crime there are two mates. It
29 doesn't do anything else and it doesn't speak to
30 anything else and if I'm right in that. If I'm
31 right that the real objective of 293 is the
32 preservation of monogamy and simply there by
33 through criminalizing a three-member union or more
34 if I'm right that is not in my submission a
35 pressing and substantial objective and I don't
36 believe the governments would disagree with me if
37 I am correct in that regard.
38 And my argument on this, that is my first
39 argument under section 1 is it begins I'm not
40 going to go through just yet but it begins in the
41 written material at page 278 at paragraph 592 but
42 all of my further submissions Chief Justice on
43 section 1 are in the alternative so if the Court
44 disagrees with me and says no the objective is to
45 address harms then the lengthier part of my
46 section 1 analysis begins. It begins on the
47 assumption that 293 is aimed at addressing harms
 29

1 either against individuals or the so called social

2 harms or both.
3 And regarding the individual harms Chief
4 Justice the two main points you will know already
5 one is that section 293 is entirely disconnected
6 from the harms that are alleged.
7 If you read section 293 you do not in it any
8 getting at the harms which are martialed in the
9 evidence that the governments have presented to
10 you.
11 It is -- I don't know it's unique in the
12 Criminal Code. It may well be. I didn't read all
13 of the code but in prepping this case I read more
14 of it than I might have otherwise. And in the
15 hundreds of crimes that are there when you read
16 them you see what Parliament was getting at as
17 wrongful conduct. I mean take the most vivid and
18 simple example of murder. We understand when we
19 read the murder provision that it is aimed at not
20 killing. Read the theft provision it's not at not
21 steeling someone mentioned even a section on
22 oyster beds it's about not steeling from oyster
23 beds it's not hard to see what's being got. When
24 you read section 293 the only thing you can see is
25 monogamy is lawful and anything else is criminal
26 and so there is no addressing of what we are now
27 advised are the harms.
28 So I say first that 293 is disconnected from
29 the harms under the government's arguments it is
30 purporting to address and if it does address them
31 in some way then I say this as a main point. 293
32 is the very antithesis of a minimally impairing
33 section. Its a -- you could call it a maximally
34 impairing section.
35 And that submission begins in the written
36 argument at page 281 at paragraph 602 which I will
37 come to later.
38 And then I will turn to the so called social
39 harms and they are in the written argument
40 beginning at page 287 at paragraph 621 and I will
41 submit that the social harm theory as advanced
42 here primarily through professor McCormack for the
43 AG Canada and Professor Henrich for the AGC
44 McDermitt for the AG Canada and Professor Henrich
45 for the AGBC is so -- is so fragile when that
46 evidence is examined, is so fragile both in two
47 respects. Both in its formulation in how this
 30

1 theory is formulated and on the available evidence

2 that it cannot serve as a foundation for
3 criminalizing people's lives and I will further
4 submit section 293 only addresses a single form of
5 polygamy in any event such that both the
6 individual harms and the alleged social harms can
7 have no possible application to many are who
8 criminalized by the section it begins at paragraph
9 651 I will submit that the 293 cannot survive the
10 final stage of Oakes of the analysis where the
11 severity of its deleterious effects on individuals
12 and groups overwhelms the supposed benefits.
13 And so if I may let me turn then to the first
14 part of my argument which is addressing the
15 objective of section 293 and just to repeat that
16 begins in the written argument at page 278 in part
17 8 at paragraph 592 and I say that from reading the
18 section it is plain that it is defending monogamy
19 and criminalizing it any other union and that is
20 all and the evidence is found in the words in the
21 section and those words make it apparent the words
22 Parliament used that it in no way seeks to
23 prohibit anything other than conjugality of three
24 or more people and I don't know if you have the
25 brief at hand Chief Justice that my colleague
26 Mr. Dickson put up the darker green one.
27 THE COURT: Yes.
28 MR. MACINTOSH: Thank you. If you'll turn there in --
29 to tab 27 from Zundell and the said this in sun
30 Zundell in the third line of the first full
31 paragraph I'll begin the reference that I wish to
32 make she said:
33
34 In determining the objective of a legislative
35 measure for the purposes of section 1 the
36 Court must look at the intention of
37 Parliament when the section was enacted or
38 amended. It cannot assign objectives or
39 invent new ones impugned provision Big M is
40 citeded in which the Court rejected the US
41 doctrine of shifting purpose. Although the
42 application and interpretation of objectives
43 may vary over time new and altogether
44 different purposes should not be invented.
45
46 And the case is quite different as she says from
47 Butler and explains why and then at the bottom of
 31

1 the page she says:

2
3 May my colleagues say it's a permissible
4 shift in emphasis focussed on the prevention
5 of deliberate slanderous statements again the
6 the great nobles of the realm and concerned
7 with a tax on but this is not shift in
8 emphasis with regard to the purpose of the
9 legislation. This is an outright definition
10 not only of the purpose of the prohibition
11 but also the nature of the activity
12 prohibited. To convert section 181 into a
13 provision directed at encourage canningation
14 harmony is to go beyond any permissible shift
15 in emphasis and effectively tiffly rewrite
16 the section.
17
18 So the question I say? Looking at the what the
19 true objective is in this case regarding 293 isn't
20 this really an effort to rewrite the section
21 because if we look at 293 to look at the words
22 Parliament used there and to say that it was for
23 any single purpose except prohibiting other
24 conjugality except month ago any that would be a
25 difficult argument I don't know what one words one
26 could point to in looking at 293 to derive that
27 argument and I say that because no harm that
28 AG's's talk about is addressed in any words that
29 are in the section and as I have said before
30 there's a disconnect between the words used and
31 the objective that the attorneys would ask you to
32 conclude is apparent there.
33 And if I can have you interrupt chief justice
34 to the written argument to the green brief volume
35 2 and if you'll -- in tab 8 where the section one
36 analysis is contained and if I could have you turn
37 to page 278 to paragraph 595 and I submit there
38 the breath taking scope of the section 293 can
39 only rational willly be explained by the
40 motivation to impose monogamy as a model of
41 conjugality for Canadians when the polygamy
42 prohibition was first passeded monogamy was
43 inextricably bound up with early Canada's
44 overwhelming Christian heritage but regardless of
45 whether Parliament's were sufficiently religious
46 as to by itself to violate freedom of. Parliament
47 clearly sought to impose a majoritarian cultural
 32

1 practice on to minority groups irrespective of

2 whether the minority's practice is harmful in any
3 any particular case. Such a purpose it
4 discriminatory anachronistic and incapable of
5 justifying the charter and as justice L'Heureux
6 due bay is said in wall Walsh she said in light of
7 this court's decision in Miron the objective of
8 promoting marriage over other, functionally equal
9 forms of intimate relationship like heterosexual
10 unmarried cohabitation is not permissible. It is
11 a discriminatory objective. As Justice Dickson
12 states in Big M, both purpose and effect are
13 relevant for determining constitutionality.
14
15 And going on in my paragraph 596 the mandating of
16 month ago any over all other forms of conjugality
17 is a discriminatory and impermissible objective
18 that cannot justify charter breaches. The two
19 attorney suggest the objective is to defer harm.
20 The attorneys appear to define the objective at
21 that level of abstraction which is a vague level
22 if I can put it that way the AG Canada said a the
23 one stage the objective is the prevention of
24 harms. AGBC said if the harm is from polygamy or
25 the reasoned apprehension then there is a pressing
26 and substantial concern and there are two points
27 in response in our paragraph 598. 293 was enacted
28 to in order to prevent harm is bellied by the
29 scope of the provision. It is silent as to harm
30 and Parliament's intention is to be taken from the
31 word it uses.
32 And as we say in 598 some opponents of
33 polygamy in the 19th century suggested it was
34 harmful as did parlimentarians and it is no doubt
35 the case in 1890 many Parliamentarians did so
36 because they wished to avoid the evils of Mormon
37 polygamy yet the law that Parliament did pass is
38 disconnected from any notion of harm. 293
39 prohibits every single polygamous conjugal union
40 even the most adult consensual and beneficial that
41 an a particular polygamist conjugal union union is
42 beneficial or harm HTLNful to it's participants or
43 others is entirely irrelevant. Harm is not just
44 an element of the crime.
45 Now, I conclude this submission in that way
46 regarding the objective of the section Chief
47 Justice and I will only summarize it that way.
 33

1 What drives a proper determination of what the

2 objective of a section is about when its objection
3 is what drives that definition is the words that
4 Parliament has used in crafting the section.
5 The history of that is before the Court in
6 deLegacy Tax and Trust detail and is
7 understandable what the governments seek to do
8 today. They seek to take an anachronistic section
9 from well over 100 years ago and invest it with
10 something that is palatable or acceptable or
11 workable to justify it constitutionally in today's
12 society. That's my respectful submission.
13 And so from here on I switch and I assume the
14 government is right and is from here on I assume
15 that the objective of 293 is to combat harm. Harm
16 to individuals, and harm socially harms that have
17 been presented to you.
18 And so then the objective is meritorious and
19 whether that objective addressed in a permissible
20 way that becomes the question. And clearly it is
21 not. Clearly the objective of harm a prevention
22 is not addressed in a constitutionally permissible
23 or acceptable way.
24 Equally clearly the irrelevant harms to
25 individuals are addressed in other crimes. The
26 constitutionality of which is not in doubt.
27 And in the written argument still at tab 8 at
28 paragraph 603 at page 281 at paragraph 603 I
29 submit this, 293 is entirely unreflective of any
30 concern for women and children affected by
31 polygamy and then the examples of that analysis
32 are put there. If avoiding harm to women really
33 were the purpose of the law. 293 would reflect in
34 a concern by targeting such harm. It doesn't. To
35 the contrary, every single polygamist conjugal
36 relationship is criminalized. Regardless of
37 whether women are at all dissatisfied with the
38 relationship regardless even of whether any women
39 are in the relationship since all male polygamy is
40 also captured. 293 criminalized the women in
41 polygamous conjugal relationships along with the
42 husband so it's not speaking so prevent their harm
43 it's seeking to criminalize them in my submission
44 and then I submit if avoiding harm to children as
45 parties to polygamy were the law's aim 293 would
46 reflect that concern by making an element of the
47 can offence that one of the parties to the union
 34

1 was a child. It doesn't. To the contrary, all

2 polygamist conjugal relationships are criminalized
3 even if comprised entirely of consenting adults
4 and furthermore and worse 293 criminalized
5 children if they join polygamous con conjugal
6 union and finally in sub-paragraph C if avoiding
7 harm to children borne of or recognized then 293
8 would reflect that concern by making the presence
9 of children an element of the offence and again it
10 does not. And then I go down to section --
11 paragraph 605 and on the point of what I'm calling
12 disconnection because in paragraph 605 an I'm
13 saying that 293 is not rationally connected to the
14 objective of protecting with women and children.
15 A rational connection implies a measure of
16 precision that is absent from the section. Chief
17 Justice Dickson in Oakes stressed that for
18 justification the law must be carefully designed
19 to achieve the objective and just let me go to
20 Oakes a second time and again it's in my white
21 brief and it's at tab 5 and this time I would just
22 ask Your Lordship to turn to page 139 and there at
23 letter D the Chief Justice said this. He said
24 first he said the measures adopted must be
25 carefully designed to achieve the objective in
26 question. It must not be arbitrary. Unfair or
27 based on irrational considerations. In short,
28 they must be rationally connected to the
29 objective. Second, the means even if rationally
30 connected to the objective in this first sense
31 should impair as little as impossible the right or
32 the freedom in question and at page 140 141 he
33 said this. Letter G, the next stage of the
34 inquiry is a consideration of the means chosen by
35 Parliament to achieve its objective. It's the
36 reverse onus clause in section 8 in Oakes
37 rationally related to the objective of curving
38 drug trafficking and on the particular facts of
39 Oakes this is what the Court decided on page 142
40 justice Martin's analysis from the court appeal.
41 In my view section 8 that's the reverse onus
42 clause at play there in my view section 8 does not
43 survive this rational connection test. As justice
44 Martin of the Ontario Court of Appeal concluded
45 possession of a smaller negligible quantity of
46 narcotics does not support the inference of
47 trafficking. The presumption required under
 35

1 section will of the Act is over inclusive. Well

2 equally there justice Martin focussed on the fact
3 there could be tiny quantities of drug here which
4 have cases of three are more people living
5 perfectly well, openly, honestly and properly in
6 conjugality where the section criminalizes them
7 where there is not the slightest suggestion of
8 anything improper and in the written argument,
9 My Lord on over breadth really but at page 283 at
10 paragraph 607 I submit this 293 over breadth can
11 be seen in three dimensions the first is the
12 variety of relationships it captures. It
13 criminalizes them all regardless of abuse or
14 benefit whether they're coercive or consensual.
15 Involve children or dot. Our polygynous
16 polyandrous, homosexual or something else.
17 Patriarchal polyamorous. Involve sex or produce
18 children. So the section is banning every
19 polygamous conjugal union whatever its form and
20 irrespective of whether there is any harm and I
21 say in 609 the second dimension of 293 is
22 overbreadth relates to the individuals it
23 criminalizes it criminalizes all the parties to
24 the polygamist conjugal unions. And in 610 I say
25 a third dimension of overbreadth concerns not
26 which relationships or which individuals but how.
27 293 criminalizes relationships that are not
28 harmful. For individuals who have caused no harm
29 but it also as I say at the top of 284 denounces
30 conduct that is not inherently harmful. Despite
31 the attorney's strenuous protestations to the
32 contrary. Polygamy is mainly not harmful in and
33 of itself and at paragraph 611 I submit in the
34 middle of that page take the example of a woman or
35 child actually being harmed in a polygamous
36 relationship, a husband who is determined to have
37 caused the harm is he duly convicted of polygamy
38 if so what message does that send. The
39 prosecution was motivated because the man harmed
40 another individual and yet he was convicted of
41 polygamy. Does the victim not deserve to know the
42 law denounces the harm the man inflicted but
43 there's a fatal disconnect there. Section 293
44 does not concern harm to individuals and a
45 conviction for polygamy did is not denounce the
46 infliction of harm upon individuals.
47 And for any consideration Chief Justice of
 36

1 harm to individuals I submit 293 is also

2 unnecessary and I say that that also fits within
3 the breadth of the section 1 analysis because the
4 valid laws which are in place and which directly
5 serve to address the harms, those laws in this
6 reference they do this, they serve to illustrate
7 the disconnect between 293 and the real harms.
8 They are such a vivid example of how off centre
9 293 is from what the attorneys want and what we
10 all want to punish and to deal with and to get at.
11 293 these other laws are focussed on the true
12 problems and the true harms and a lot of those
13 laws a number of them are contained in the second
14 volume of our submissions. And they're found
15 there at appendix B to those submissions.
16 But just let me preface my reference to those
17 by one other thing in Oakes. One other
18 observation in Oakes and something from hutter and
19 brethren and again Oakes is in the white book at
20 tab 5 and it it's at page 138 that I it turn this
21 time. Because there the chief justice will also
22 need to know what alternative measures for
23 implementing were available to the legislators
24 when they made their decisions and in the
25 Hutterian or Hutterian I don't know the correct
26 pronunciation but I will say in the Hutterian
27 brethren case at tab 6 the essential facts are now
28 clearly known to us. It's the driver's licence
29 photograph case for Hutterites and at page 596
30 there and again I use the S.C.R. paging for that
31 and at 596 Chief Justice McLaughlin asked whether
32 the limit minimally impairs the right and
33 obviously where I'll be coming to in this analysis
34 is for the same reasoning in the Hutterian
35 Brethren case it was minimal the opposite
36 resonates here with regard to 293 as sort of
37 maximally impairing if I can put it that way and
38 she says this at her paragraph 35 the question at
39 this stage in the proportionality analysis is
40 whether limit on right is reasonably tailored to
41 the pressing and substantial goal put another way
42 of putting this question is to ask whether there
43 are less harmful means of achieving the
44 legislative goal. She says in making this
45 assessment the cords accord the legislature
46 particularly on complex social issues when the
47 legislature may be be better positioned she goes
 37

1 on and references RJR and the government must show

2 that the measures at issue impair the right in
3 that case of freedom of expression as little as
4 reasonably possible in order to achieve the ledge
5 lay sieve object and purpose and she goes on at
6 597 and she said the minimum impairment test
7 requires only that the government choose the least
8 drastic means of achieving its objective. I
9 highways ento add in considering whether the
10 government's objective could be achieved by other
11 less drastic means the Court need not be satisfied
12 that the alternative would satisfy the objective
13 to exactly the same extent or degree as the
14 impugned measure in other words the Court should
15 not accept an unrealisticly exacting or precise
16 formulation the government's objective which would
17 effectively immunize the law from scrutiny at the
18 minimal impairment stage. The requirement for an
19 equally effective alternative measure in the
20 passage from RJR quoted above should not be taken
21 to an impractical extreme sufficient protection in
22 all the circumstances to the government's goal.
23 Well the government is entitled to deference and
24 formulating its objective that deference is not
25 blind or absolute. The test at the minimum
26 impairment staple is whether there is an
27 alternative lest drastic means of an achieving the
28 objective in a real and substantial manner. And
29 finally from that case at this stage at page 601
30 still in the Chief Justice' reasons she says where
31 the validity at page 601 where the validity of a
32 law is at stake the appropriate approach is a
33 section 1 Oakes analysis under this analysis the
34 issue at the stage of minimum I remember pairment
35 is whether the goal of the measure could be
36 accomplished in a less infringing manner and that
37 I submit would take us to appendix B in the
38 written argument and we see a series of
39 constitutionally sound criminal and other
40 prohibitions which all relate to the harms of
41 which the governments complain in this case and at
42 the first page, page numbered 3 section 151 is
43 sexual interference. 152 is an invitation to
44 sexual touching. Section 153 we have touched upon
45 earlier is sexual exploitation and it's meaningful
46 to link those three sections as well to what is
47 seen at page number 10 in the same appendix.
 38

1 Because at page 10 we have section 273.3 removal

2 of child from Canada. And it speaks of that crime
3 and in so doing it references in sub-paragraph A
4 it references sections 15 a 1 and 152 and in sub B
5 of subsection (1) paragraph B it references
6 section 153 and these are -- I wouldn't say tailor
7 made because they aren't tailor made for anything
8 the governments point to in the FLDS they're not
9 tailor made for that at all. They're made for
10 what I will call a monogamous society. And the
11 reason obviously is because these harms or these
12 wrongdoings happen everywhere and these are not
13 enacted I would submit at least on any evidence we
14 know of having any regard to polygamy. These
15 events happened at large. But they are obviously
16 very well suited to the analysis that comes from
17 hutter and brethren and from Oakes with regard to
18 minimal impairment and incidentally on that point
19 of where the most harmful conduct occurs the
20 evidence is entirely equivocal and in the written
21 argument in volume 2 at Part V if I could take you
22 there to page 213 and at page 213 in paragraph 476
23 here is a summary from Ms. -- my colleague
24 Ms. Herbst' review of the materials. Where its is
25 written Dr. Beall agrees there is no known
26 quantitative empirical data available on the
27 effectses of the practice of polygamy on
28 individuals. Dr. Henrich who relies in discussing
29 abuse on research presented by professor
30 Shackleford and the monogamous context notes none
31 of his data permits a statistically controlled
32 comparison of the relative rates of these negative
33 outcomes and monogamous versus polygamous marriage
34 and indeed notes we don't have good data what
35 happens in polygynous households professor shock
36 will forward notes he not away ever compared such
37 matters in polygamous and monogamous relations but
38 I digress when I go there Chief Justice because
39 even assuming for the moment that even assuming
40 for the moment that the harms the governments
41 complain of are particular to certain segments of
42 the FLDS even assuming that, when you go into the
43 mall impairment analysis from Oakes and Hutterian
44 breath appendix B becomes highly germane and
45 there's an analysis that we have done which I
46 would hand up to Your Lordship but I would speak
47 to it My Lord guardedly in the sense that in the
 39

1 sense that parts of it are subject to confidential

2 orders of this court in this reference. And what
3 is what is con in the document I have handed up
4 including information known to the court and to
5 all counsel but there are some redactions and
6 therefore I won't speak to certain things in the
7 oral submissions but what this handup does by way
8 of example is take birth certificate evidence
9 which has been put into evidence by the government
10 and toward the bottom of the first page is a
11 reference to the affidavit that was filed in that
12 regard and to page 38 of that affidavit and the
13 data there in my respectful submission was lead to
14 the conclusion that there is a clear breach of
15 section 151 of the code.
16 And equally similarly on the second page of
17 what I have just handed up part way down the page
18 is reference to page 47 of that same affidavit to
19 another birth certificate which is named there
20 which in my submission would give rise to a charge
21 of sexual exploitation and if the governments are
22 focussed on alleviating or eliminating these harms
23 which obviously one would expect and accept that
24 they are, then here in the minute ma'am impairment
25 analysis is the roadway by way one or two charges
26 which would drive the message home could be --
27 could be engineereded.
28 Now going back Chief Justice to the appendix B
29 at the top of the page the first page, page 3, the
30 first page numbered 3 the beginning of appendix B
31 I reference section 150.1 is and I neglected to
32 include what I have got there is sub 1. And I
33 would ask you to note what I should have included
34 there as well is subsection (2).1 and that is what
35 allows one to do the analysis of which ages
36 consent consent and don't constitute consent or
37 whether -- but I'm not going to get into that
38 today. It's -- it's not central to my submission.
39 And but then looking further at appendix B
40 before leaving it, at page 4 is section 155
41 addressing incest at page 5 is section 170 a
42 parent procuring sexual activity, 171 a household
43 or permitting sexual activity, 172 corrupted
44 children. Page 6 section 212 procuring. Whether
45 in or out of Canada. Section 215 duty of persons
46 to provide nests and over to page number 10 I have
47 touched upon it in the past section 273.3 removal
 40

1 of a child from Canada linked back to sections 15

2 a 1, 152 and 153 page 11 section 279 kidnapping
3 and forceable containment. And at the bottom of
4 page 11 section 279 point 01 trafficking in
5 persons. And then all of the crimes on page 12
6 abduction of persons under 16 abduction of person
7 under 14, abduction by parent or guardian and then
8 I go over to provincial statutes at page 14 the
9 child family and community service Act section 13
10 when protection is needed and when a child may be
11 taken. And that lunches to the next page page 15
12 and section 27 a child in immediate danger and
13 then at page 17 is reference to the immigration
14 Act which I will speak to in another part of my
15 submissions in all likelihood in the course of the
16 afternoon.
17 And in addition to appendix B Chief Justice
18 there's one crime which it would appear is
19 probably not addressed which may not be addressed
20 in the crimes I have referenced and that would be
21 a crime against forced major against forced
22 conjugal relationship. And I realize to some
23 extent that's strays outside the scope of the
24 reference but it wouldn't be the first time but in
25 part 9 in the submissions here when I respectfully
26 submit what is useful going forward that is one
27 thing that the government might wish to consider.
28 Now, Chief Justice back in my submissions at
29 my tab 8 at paragraphs 616 and 617 at -- begins
30 then at page 285.
31 THE COURT: Thank you.
32 MR. MACINTOSH: I submit in 616 there is no credible
33 evidence in the reference that the targeted s
34 listed above cannot be effectively employed to
35 punish and deter harmful conduct in polygamous
36 relationships is and I submit despite the AGBC's
37 long involvement in scrutinizing Bountiful despite
38 the evident cooperation from the RCMP the AGBC has
39 received in collecting evidence for this reference
40 despite having witnesses American prosecutors have
41 prosecuted polygamists neither of the governments
42 has brought forward convincing evidence in my
43 submission that more targeted laws cannot
44 effectively be employed and I submit in 617 the
45 AGBC makes the balanced statement these more
46 targeted offences such as child exploitation and
47 traffics are under reported and difficult to
 41

1 prosecute and but that could be said of most

2 crimes particularly in family settingses.
3 Certainly it can can be said of sexual crimes that
4 bear little relationship to polygamy and yet
5 difficulty of prosecution in any other context
6 would never be said to constitute a grounds to
7 impose such a grave charter violation.
8 In 619 I submit at the beginning the broad
9 criminalization of polygamy pushes polygamists
10 communities to be more insular and I submit it's
11 relevant in that regard Chief Justice to look at
12 those who want decriminalization because many of
13 those are from a polygamous upbringing and in our
14 volume 2 in our Part V at volume 2 at page 150 in
15 paragraph 38 -- sorry for all will jumping around
16 but at paragraph 381 arrested ream among former
17 FLDS who testified by video link who said that I
18 don't think that the society should be label as
19 being abusive just because they're polygamous.
20 Because it's not the polygamy that's causing the
21 abuse it's the people in it and the way it's being
22 run. And Carolyn Jessop is referenced at page 151
23 she supports criminalization and she does so in
24 part because it could suppose different from that
25 background to more options as she said to
26 Ms. Winfrey I think decriminalization did he
27 criminalizing polygamy is the answer because it's
28 more of the middle road and she further down the
29 children could be more mainstream, the children
30 would have more options they would see more of
31 what is really available but very often when the
32 families are are living this way the neighbours
33 won't allow their children to play with children
34 from a polygamous family which just isolates the
35 children more from normal society. Chev just I
36 just recalled your need to adjourn.
37 THE COURT: If that's okay. It's outside the office.
38 MR. MACINTOSH: Yes thank you the is 2 o'clock.
39 THE COURT: Yes.
40 THE CLERK: Order in court. Court is adjourned until 2
41 p.m.
42
43 (NOON RECESS)
44
45 THE CLERK: Order in court. .
46 THE COURT: Thank you for accommodating my schedule.
47 Thanks very much.
 42

1 MR. MACINTOSH: Thank you Chief Justice you will recall

2 before lunch I was addressing the section 1
3 analysis and in particular the government's
4 allegations of harm linking it to 293 and I had
5 referenced my paragraph 619 which made the
6 point -- made the assertion that criminalization
7 serves to push polygamy underground so to speak
8 and then I was in the second volume at Part V
9 where I was referencing observations to that
10 effect from those in polygamy in their lives and I
11 was in my tab 5 page 150 and 151 and at page 151 I
12 was referencing Ms. Jessop and I wish to continue
13 with that, please.
14 And when she spoke about decriminalizing -- I
15 want to read the paragraph where I was. She said
16 at page 151 I think decriminalize polygamy is the
17 answer because it's more of the middle road. A
18 blanket prosecution is disastrous it set up the
19 elements like for the community I came from it set
20 the elements and stage for the very abuses to
21 occur that are occurring now so if there was a way
22 to decriminalize it so people could live honestly
23 and in the open and with dignity and their
24 children could be more mainstream then the
25 children would have more options. They would see
26 more of what is really available but very often
27 when families that are living this way the
28 neighbours won't allay familiar which isolates the
29 children more and Ms. Jessop notes among the
30 problems of criminalization the difficult of
31 accessing and she said this to the senate
32 committee on the judiciary I knew as did everyone
33 woman is an illegal lifestyle we feared going to
34 any service agencies outside of our community
35 instead of being helped. We were all multi
36 general rational Americas but have the same fear
37 as I illegal immigrant. I know I did not believe
38 I and further in response to senator hatch she
39 said that Ms. Jessop explained that involves the
40 fact that I knew if I went to the authorities I
41 would be viewed as a criminal so I did not believe
42 that -- I mean I did not see myself as a normal
43 citizen and in the next page and so I just
44 believed that you know I did not have access to
45 the same protections Ruth Lane and I have to
46 apologize a little bit in advance Chief Justice
47 because I'm going are have have to do backing and
 43

1 forthing within the book as a whole and with

2 regard to Ms. Lane who I address at 15 a 2 I would
3 ask you to cross note so to speak tab 7 in the
4 same book at paragraph -- tab 7 at page 264 and
5 it's at paragraphs 563 and 566.
6 And I'm turning there now because Ms. Lane who
7 spoke by way of video evidence for the AGBC she
8 said and I'm now at my page 264 the one thing I
9 can say about the replying must communities for
10 now are come becoming more open and more open to
11 doing things whereas if you uphold that law I
12 think you're going to do a lot of the that
13 openness and it's going to be become closed off
14 again and at 566 that is the next page paragraph 5
15 a 66 further quoting from Ms. Lane's video my
16 biggest fear is if the question is answered that
17 the law is upheld going to be doing the very thing
18 you're supposedly fighting for you in talking with
19 you it's Ms. Horsman Greathead I like you would
20 like to see the decrease the lawmakers would like
21 to see a deif you answer the question to uphold
22 that law you might get your profile arrests and
23 your profile prosecution but you will see an
24 uprising because it will become an a martyrdom
25 thing something that is going to happen because
26 the law is against it.
27 And now could conclude where I was Chief
28 Justice I'm back in my tab 5 an and I'm back at my
29 page 152 and I reference another former FLDS
30 witness Ms. Jensen who testified in person pour
31 the AGBC and highly critical of her experience and
32 she had previously noted that if polygamy were
33 legalized it would at least give women a legal
34 outlet if they left their husband they wouldn't
35 leave with nothing and no children which is how it
36 is now. Manies Palmer is referenced a former FLDS
37 woman who left Bountiful in the late 80s co-wrote
38 one of the books that's in front of you. And she
39 said that the community's problems did not stem
40 from the practice of plural marriage attributed it
41 to a few power hungry men who are abandoning the
42 fundamental doctrines and noting polygamy can can
43 work if the man is wise and sensitive and Dan
44 Fischer a former member of FLDS who assisted other
45 former FLDS members to the same effect and then
46 over at page 153 finally on this group of the
47 evidence Ms. Peters while not herself a member of
 44

1 the FLDS spent considerable time in Bountiful

2 while researching a graduate thesis which is
3 included in the Brandeis brief and noted support
4 reservations about certain community practices.
5 I would link on to that if I may Chief Justice
6 a the tab 6 in the same book at page 255 an and
7 just the obvious of three other witnesses and then
8 I will conclude those references.
9 At page 25 a 5 I observe Witness No. 3
10 believes the criminalization of polygamy causes
11 her and all FLDS with whom she an I associates in
12 Canada to be very cautious in their dealings with
13 government police and other members of Anne Wilde
14 who spoke by video attested that the people within
15 this culture are afraid to report crimes and come
16 forward because of criminalization of the practice
17 drives people underground and if the goal is
18 insure that goal is not furthered by did he Monday
19 insiding and criminalizing people. She noted that
20 as one who worked closely with law enforcement if
21 polygamy were decriminalized it would be
22 beneficial for both law enforcement and plural
23 marriages as the latter would be less isolated and
24 more open in seeking help and finally Sydney
25 Anderson an a director of a Utah advocacy group
26 union set a fear of prosecution among polygamists
27 almost assures crimes like child abuse will
28 continue noting women will die rather than deny
29 their religious faith and that the state is
30 forcing them to an abusive situation and some men
31 are using to convince women northeast have to live
32 in isolation for the unit to be safe. So women
33 who need help can't get it out of fear in her view
34 did he criminalizing the bigamy offence in Utah
35 would make it easier for members of plural
36 families to seek help when they need it.
37 And on this same page which all stems from my
38 paragraph 619 about criminalizing having a
39 negative force a negative influence the law reform
40 commission of Canada back in 1985 spoke and its
41 quoted in tab 7 in the brief at page 270 and it's
42 quoted at paragraph 573 and there's two paragraphs
43 I'll read from there. When justice Lynn done was
44 presiding over the commission at that time he said
45 the same is true of polygamy a practice so foreign
46 to our way of life it does not directly threaten
47 the institution of marriage devoid of any official
 45

1 character it may be record an a marginal practice

2 in the same way it's adultery so it does not call
3 for criminal penalties and the last paragraph
4 there he he said month ago any is an a value
5 generally deep rots colours are entire legal
6 system. This -- it will would thus could
7 generally jeopardize it in strew of this so
8 foreign to our values and system is both
9 unnecessary and sanction it criminally. Now, I
10 will just touch on three different law reform
11 bodies who have come to comparable conclusions but
12 I won't read them. The law commission of Canada
13 in 2001 is urging the consideration of even the
14 bigamy provision being repealed criminally.
15 That's in our paragraph 26 in our submissions.
16 The law reform commission of Australia is to the
17 same effect urging consideration repeal bigamy
18 that's our paragraph 35. And Glenn volume
19 Williams in England recommending the same thing
20 and that's our paragraph 33 and lastly on this
21 Chief Justice if I can have you look at one other
22 reference at tab 5 in the brief at paragraph 459
23 are the writings or the positions of a number of
24 women who in large part would I think be correctly
25 characterized as feminist legal scholars in
26 paragraph 459 at page 198 their positions on did
27 he criminalizing are summarized first Ms. Ama any
28 a professor of law at York who began her work on
29 this through a paper for the Status of Women
30 Canada and recommending the repeal of 293 in its
31 entirety and at page 199 Ms. Bailey wick a
32 professor of law at queens to the same effect
33 Ms. Baines a professor of Lane law on women's
34 studies at queens professor bee men of religion
35 studies at the Ottawa page 200 Angela Campbell
36 among others and associate professor of law at
37 McGill who the court will well recall perhaps.
38 Now, I will just interject there something
39 Mr. Jones urged upon you. Chief Justice last I
40 think it's two weeks ago and he postulated
41 something he call the Bountiful thought experiment
42 and what that was as he he described it was this.
43 He said in 1947 a man named Harold Blackmore was
44 in the southeast Kootenays and he was described I
45 think it's fair to say by the AG as an upstanding
46 person and he married his first wife I believe
47 legally married and then married her sister
 46

1 polygamously and they were potlatch in their 30s.

2 And that was spoken of by the AGBC in
3 favourable terms. He was described as a good man
4 and the relationship was portrayed as a good and
5 healthy one.
6 And the postulate of Mr. Jones was, well,
7 let's look at Bountiful now and the evidence
8 indicates that some bad things some criminal
9 conduct has occurred. And the implication of
10 course was even though they were good and well
11 meaning and upstanding people look what has come.
12 And I would make two observations then with regard
13 to this Bountiful thought experiment. Because I
14 would say with respectT would be flawed in this
15 sense. I would say the first flaw is that
16 apparently upstanding an upstanding trio an
17 upstanding man and two wives polygamously are
18 guilty. Of a crime under 293 it has they were
19 harming no one and in other words it's just as
20 likely that polygamy hinders getting at the real
21 problems as it does cause any real problems and so
22 I would the social harm allegation of the
23 government I could not say that had not been
24 written about in the past there is one writer who
25 Professor Henrich had had spoken of who wrote
26 about it but I would say that the social harm
27 theory is best examined in this court through the
28 two witnesses who were called Professor Henrich
29 and professor McDermitt because they're the ones
30 who brought it here to the court so to speak to
31 expose it to the air if I could put it that way.
32 And who were cross-examined and so they they
33 are the -- in this hearing the main
34 representatives and Dr. Henrich for the AGBC
35 his -- his point is polygamy manifests as polygyny
36 so the other parts are set aside in this analysis
37 and so then he says polygyny create as pool of
38 unmarry men. Theories the social harms. A pool
39 of unmarried anti-social men he said several times
40 in his report are prone to murder was the crime
41 that was selected. More than once.
42 And the other postulate there would be more
43 competition for women leading to earlier
44 sexualization of girls and in part 8 of the
45 argument here in tab 8 if I can go first to page
46 62 -- sorry, paragraph 623 and that's at page 287.
47 And I only preface all of this part with the
 47

1 caveat I think you're well aware of now that we're

2 now even not even addressing other forms of
3 polygamy where there's no suggestion of these
4 harms.
5 But staying with polygyny page 287 paragraph
6 623 a few lines down I submit it's important to
7 keep in mind just what this cruel arithmetic
8 theory as it was called is attempting to justify.
9 That everyone who entries into a conjugal union
10 with more than one other person be subject to a
11 penal sanction. Not because of some harm they
12 have directly inflicted upon someone else but
13 rather because the gender arrangement of their
14 intimate and personal conjugal union has to some
15 degree skeweded the gender ratio among unmarried
16 persons in the rest of the population such that
17 unmarried men may are prone anti-social behaviour
18 and from there had the attorneys urge that 293
19 properly imposes penal liability and in my
20 submission to look at this we first look at the
21 evidence on the pool of men and we would go in
22 that regard to paragraph 627 at page 289 and there
23 we cite professor Wu one of Canada's most
24 experienced social demographers who said in Canada
25 there is a surplus of approximately a half million
26 single men and in paragraph 628 if that were a
27 pressing social concern there might be -- one
28 would expect to see something written about it
29 which there isn't. The AGBC has not presented any
30 and Dr. Henrich his analysis is based on events in
31 China not only in a different social context but
32 one having noing nothing do on the analysis
33 polygamy and we submit if the existing pool of
34 unmarried men were so linked to increased crime
35 that would be reflected in something in statistics
36 in Canada much there is nothing suggested that
37 sense.
38 And in 631, 6331 the -- I submit the
39 phenomenon of the pool of unmarried men as a
40 reality but on the statistics it's one that has
41 nothing to to with polygamy nor is it necessary a
42 pressing and substantial concern. But then in 632
43 we look at the numbers that we're dealing with on
44 this social harm theory as a basis for
45 criminalizing people in 293 and I think what I
46 would do Chief Justice is link that back if you
47 can cross reference 632 please back to tab 7 to
 48

1 page 266 and there if we look at the paragraph 569

2 and we go over the next page so we start in 569
3 under sub-paragraph A about four lines down
4 relatively knew engage in polygamy even in
5 Bountiful which has a total population of only 800
6 to 1,000 on the FLDS side of the community perhaps
7 55 people in total are in polygamous relationships
8 and for its part the question he about this case
9 counsel will is it a TUT did he la feminine I
10 apologize for my French understandably notes it's
11 estimated that polygamy is practised by a very
12 small number of Canadian Muslims.
13 And on the next page at the top of page 267 I
14 point out that a survey by the Canadian polyamoury
15 add VOE Canada as I association identifieded 11212
16 polyamorous conjugal households in the country
17 based on each gender having equal rights in their
18 intimate relationships and comprised of 167 women
19 158 women. Woman statistics Duncan Brown on which
20 professor McDermitt relyings notes as to Canada we
21 have found no evidence that polygynous marriages
22 are a national issue they do not even appear to be
23 a cultural or regional occurrence. Other evidence
24 may be found in the future put as of this comment
25 the practice appears to be extremely minimal or
26 non-existence and monogamy is the rule and
27 widespread and that accords with professor Mcmitts
28 understanding of Canada. Dr. Henrich conceded
29 that Canada is amonogamous society. Polygamy will
30 be absolutely exceptional and nowhere near the
31 normal and the numbers in Bountiful itself are
32 back in my tab 8 back at page 290 at this
33 paragraph 632. There are the 55 people married
34 polygynously. The 15 men, 40 women polygyny
35 renders 25 women unavailable to men on this basis.
36 If we double that for the Blackmore side that's
37 50. And then there are polyamorists who appear to
38 more towards polygyny than polyandry and we're
39 guessing another 25 so we submit the combined
40 number of unmarry men causeded by polygyny in
41 Bountiful and polyamoury is therefore roughly 100.
42 There are Muslim polygamists so they are unknown
43 and guessing there's another 50 from that.
44 And that corroborates what the law reform
45 commission said in 1985 and the paragraph I did
46 not read before but it appears again at page 293
47 from the law reform commission in 85 and they
 49

1 speak about how marginal it is as a phenomenon and

2 I would submit there's nothing on the evidence in
3 this reference that would change that observation
4 from 1985 to the present when it says it's a
5 marginal practice and remains marginal and does
6 not affect either the Canadian social fabric or
7 the institution of marriage and that's the factual
8 context of the -- of the social harm theory.
9 And the theory of social harm is advanced as
10 we have seen by professor McDermitt for Canada
11 Professor Henrich for the Attorney General and I
12 would say this about both of those witnesses. I
13 would respectfully submit that both were honest.
14 That was my respectful observation and my
15 criticism of their contribution is not based in
16 that or a lack of honesty in any way. Where my
17 criticism is aimed in their reasoning as it can
18 can apply to this reference and as it can have
19 application to this reference. Because in my
20 respectful submission the reasoning was not sound
21 in its application to polygamy and would
22 constitute an extremely unreliable basis upon
23 which to find -- to found criminality and in doing
24 doing this analysis I leave aside the legal point
25 that 293 criminalizes the young girls who are
26 regarded as part of the social harm that's not
27 where my analysis focuses so let me turn if I may
28 to professor McDermitt and my analysis of her
29 testimony is in volume 2 of the book at tab 5 at
30 page 163 beginning at paragraph 403 and in my
31 white book Chief Justice I have sore McDermitt's
32 report at tab 8 and two exhibits which were filed
33 in connection with her evidence are at tab 9 and
34 tab 10.
35 So tabs 8, 9 and 10 relate to her and I do
36 submit that even the way she came to the issue is
37 somewhat informative. There was the 911 attacks
38 on the World Trade Centre. Al Gore was at Harvard
39 and summons a dozen professors to try and do
40 analyses of what the animosities were and what
41 they were based on and as she says as quoted in
42 paragraph 403 that's how she began studying the
43 topic and she was interested in the source of
44 aggression towards western governments and she
45 worked with a man named Rangam, I believe. And he
46 believed that polygyny institute constituted an we
47 had no means to test this proposition so she
 50

1 joined women's statistics with the specific goal

2 of compiling data on polygyny in order to test
3 this and I say it's not without note that 10 of 12
4 people were drawn this this here nonetheless she
5 carried on and that meant the cause and so her
6 point was polygyny was the cause of whatever came
7 on the other side of her analysis and that got
8 into -- it became the cause of high national
9 defence budgets for example and she acknowledged
10 that no one has ever taken this approach before.
11 This was her -- the first study ever in which
12 polygyny was treated as a cause of various things
13 and she linked almost as many bad things as you
14 can name to polygyny as the variable and in my
15 submission the reasoning is unacceptable and she
16 began with the literature review which I don't
17 want to take time for today but then at the bottom
18 of page 165 in the written argument we see what
19 she was doing to get to her conclusions on her --
20 for her evidence and she had a list of countries
21 and their listed in the white book at tab 10 and
22 she had a list of countries which she graded
23 between 0 and 4 reflecting her opinion of an
24 increasing incidence of polygyny and this list was
25 fundamental for her report. It was the basis for
26 her independent variable. We had to ask for it.
27 It wasn't available anywhere. And it was
28 eventually produced and that's as I say in tab 10.
29 And then we look in that an independent variable
30 and 0 was for countries where there was no
31 polygyny and but that included countries where
32 there are many many many hardships and it included
33 eastty more, Equador Brunai guyia in a the I've ry
34 coast Macedonia El Salvador and north Korea and
35 countries where there's a little more polygyny
36 they were United Kingdom and Canada. The number
37 be 2 countries there was more polygyny and they
38 included and interestingly the four countries
39 included it was obviously from that data that
40 there is obviously better primary is secondary
41 education in the number one and the number two
42 countries she readily agreed so the data was not
43 defending her thesis in my submission. The
44 implication that is in these instances there was
45 less -- the less polygyny the worst the levels of
46 education. Which of course is not something I'm
47 suggesting is the case. I don't suggest that more
 51

1 polygyny fosters greater levels of primary and

2 secondary education any more than I would suggest
3 the opposite but the data that professor McDermitt
4 martials in my submission is not sophisticated
5 enough to support her thesis and she called these
6 examples outliers and she referenced in very
7 strongly defendeded her woman stats data and that
8 was at tab 9 in the white book and I submit in my
9 paragraph 413 that the compelling conclusion is
10 that polygyny is not the causative of the various
11 evils that she addressed and she began with birth
12 rate at paragraph 77 in the tab 8 in the white
13 bookending with defence expenditures. And I
14 submit in paragraph 414 commonsense dictates that
15 the problems such as large defence budgets allow
16 education levels especially in developing nations
17 result from such things as I suggested to her as
18 war whether tribal, between nations religious or
19 civil and is equally obvious that famine draw the,
20 aids malaria, colare an and poverty bring the
21 burdens which professor McDermitt would have the
22 court conclude are caused by polygyny the only
23 control that she employed in a way that I suggest
24 the evidence doesn't explain which she had a
25 control for GDP in her analysis. Professor
26 Shackleford who has conducted cross cultural
27 research himself noted that perhaps the greatest
28 challenge in undertaking cross cultural research
29 in order to compare relationships processes
30 dynamics one culture to those of another one has
31 to be very sensitive as to whether there might be
32 differences and that or the other cultures and
33 asked about the cross cultural studies by counsel
34 professor Wu who is a demographer had no concept
35 of GDP a the Monday store control and he was just
36 pointing obviously many many factors will govern
37 the co-relationship. Paragraph 415 professor
38 McDermitt admitted could not prove anything. The
39 most she could do was create a CEO relation
40 between the instance of polygyny and the incidence
41 of something bad however the larger point in all
42 probability the incidence of polygyny was wholly
43 irrelevant virtually every evil she purported to
44 link it with and then I would adopt but not read
45 the balance of that paragraph.
46 And then in paragraph 416 I submit at the
47 bottom of page 169 that the defence budget
 52

1 analysis is particularly troubling in its

2 departure from anything reasonable. The defence
3 budget analysis was performed identically to the
4 other analyses and thus revealing of frailty and
5 she said in her report paragraph 27 without
6 qualification quote states with higher rates of
7 polygyny spend more money per capita on defence.
8 Particularly on arms expenditures for women's.
9 Her thesis was that there is a causative link
10 between polygyny rates and national defence
11 budgets. And her entire analysis leading to this
12 startling conclusion consisted her taking a list
13 of polygynous countries a list released by the
14 Stockholm international peace research Institute
15 setting out defence budgets for various nations
16 and somehow unstated taking into account the GDP's
17 of nations to develop a co-relationship between
18 polygyny and defence budgets and there was nothing
19 more to it than that and in paragraph 131 of her
20 report addressing the defence budget analysis that
21 contains form lie and I submit critically that
22 that invests the analysis with with an appearance
23 of rigour which is undeserving and the next
24 sentence given Your Lordship's comment yesterday
25 the first part of this sentence would have to be
26 deleted and but my criticism remains with respect
27 does remain undid minute issued and I -- the only
28 caveat I would put on that I don't impugn
29 integrity but I do impugn the methods and the
30 research and the reasoning.
31 And thus I submit that report has to be
32 rejected insofar as this reference is concerned.
33 Now, Professor Henrich is in the white book at
34 his report is in the white book at tab 7B and the
35 evidence if you want to note it it's the best way
36 to deal with it sequentially I would submit. The
37 first would be in the second volume of my argument
38 at tab 5 and if I could give you the three
39 groupings first and then I'll speak to them. But
40 the first would be in tab 5 of the argument at and
41 then the second place you do apologize but the
42 second place to go is at tab 7 at page -- excuse
43 me, page 269 at paragraphs 571 to 577 and then
44 lastly back to tab 5 at pages 232 and 237. And so
45 let me start in tab 5 an at page 154 at paragraph
46 385 and Professor Henrich Dr. Henrich was frankly
47 somewhat heavily advertised by the AGBC as the
 53

1 principal expert on the causes of polygamy and its

2 consequences. And he was retained in March of
3 2010 and I repeat that he appeared to me to be a
4 candid witness and that is right of pa candour at
5 that time he had no expertise with respect to any
6 facet of polygamy. He had never written about it.
7 He had never published on it. He said modestly
8 and I think correctly it he had spoken about it
9 once or twice in a lecture.
10 At paragraph 386 from the outset of his
11 engagement he focussed on the purported harms
12 because that -- those were his express expression
13 instructions which he addressed in his affidavit.
14 Mr. Jones asked him if he would be interested in
15 studying polygamy and its harms. And then he was
16 not only instructed to focus on harms but was told
17 which harms. As he testified the core idea which
18 came out in the initial discussions between him
19 and Mr. Jones was for sure the idea of this pool
20 of unmarried men. Mr. Jones showed Dr. Henrich
21 the statement of position filed in this court by
22 the AGBC recently before and the two systemic
23 harms alleged in that statement of position were
24 the same two that Dr. Henrich addressed. The
25 unmarried surplus males and the recruitment of
26 increasingly younger women and given Dr. Henrich's
27 lack of expertise at all in polygamy I submit that
28 is of concern because a person without any
29 background in it was being directed in his initial
30 dealings towards focussing on the two alleged
31 systemic harms which he proceeded to address. The
32 questioning was like this. Now, so you're handle
33 if I can call it that as an expert was quite long
34 I'm not going to repeat. Whatever it is it's not
35 an expert in polygamy; right?
36 A Right. My knowledge of polygamy has
37 increased dramatically since I took this
38 job.
39 Q I'm sure. Because before you went an
40 expert in polygamy now you're giving
41 evidence in the polygamy reference
42
43 right.
44 Q And you hard in the four months to read
45 up on polygamy
46
47 Well I knew a bit from my teaching I did
 54

1 work hard and your two main harms are

2 harms aren't they right.
3 A He request and then further he he
4 focussed exclusively on the type of
5 polygamy where the harms are are
6 perceived that polygyny.
7 Q You obviously restricted I don't you are
8 work to polygyny.
9 A That's right.
10 Q Was it you or the attorney who caused you
11 to focus on this form of polygamy?
12 well in reading and applying evolutionary
13 theory and going through the literature
14 it became clear the issue of down stream
15 societal problems are only associated or
16 could be associated in my theoretical
17 idea which is also lots of other peoples
18 with polygyny. ; right so I wrote about
19 polygyny. Right because I just heard
20 your answer the only place you found
21 harms which you theorize on are in
22 polygyny as opposed to other aspectses of
23 polygamy; right and yous in I'm and you
24 notice I'm very careful throughout this
25 document to use the word polygamy well
26 I'm trying to be careful in my
27 questioning too and I'm if you can
28 confirm for me as I heard your answer you
29 focussed on polygyny because that was the
30 only place you found harm; is that right.
31 A That is correct.
32
33 And then I'll just go now Chief Justice to that
34 second part I was referencing so I will ask you to
35 go to tab 7 and to page 269 and there I started at
36 paragraph 5 a 71 as noted earlier Dr. Henrich is
37 the AGBC's lead expert on the harm theory in his
38 report and that's -- that's in the white book at
39 tab 7B. At page 21 and all the pages have a page
40 number at the it at the top and page number at the
41 bottom. All the pages here are going to be the
42 top of the pages. Page 21 and also page 32 but
43 page 21 at the top and under the title of
44 introduction and summary Dr. Henrich's first point
45 is that a non-trivial increase in the incidence of
46 polygyny is quite plausible if polygyny were legal
47 legalized and Mr. Jones in his oral submissions he
 55

1 said that Dr. Henrich takes no position on whether

2 she it should did he criminalized but I would
3 somewhat take issue in any event Dr. Henrich is
4 hypothesizing that a non-trivial increase in the
5 incidence of polygyny is quite plausible if
6 polygyny is legalized and that's core to his
7 thesis and this conclusion he's not a lawyer he's
8 not a criminologist not an expert in polygamy was
9 tested and his theory paragraph 5272 was if
10 polygyny where is real laced rich alpha males the
11 would marry several women. Now, I -- he he
12 hadn't -- he he distinguished in his mind between
13 criminalizing and legalizing Justice Lynn done
14 addressed this as we is seen. He opined justice
15 Lynn den that he did call for the criminal
16 penalties and it was excessive to sanction it
17 criminally as we see at the bottom and then at
18 paragraph 574 cross-examining Dr. Henrich I
19 suggested his primary conclusions do not pass a
20 test of commonsense. And I submit it's absurd to
21 suppose there would be a break out of if polygyny
22 were out of keeping with the life experience of
23 Canadians to no who was expressed even a fanciful
24 wish for polygynous union. Dr. Henrich readily
25 agreed but said had his theories are not to be
26 tested by commonsense. This was because the
27 rationalization that his work is scientific in
28 nature and the good scientist let's the scientific
29 study lead to the conclusions as opposed to
30 letting one's sense of things steer the
31 conclusions and to note that Chief Justice that's
32 in the transcript for December 9th of 2010 and
33 it's at page 89 line 13 to page 90 at line 35 and
34 the last few lines of that exchange are like this.
35 The conclusion is questioned at line 33 on page
36 90.
37 Q , you would never want to test your
38 theories against life experience?
39 A That's right.
40
41 And my point of criticism there is this is not
42 like thermal dynamics or nuclear physics where it
43 may be unless you have a no bell prize this your
44 pocket commonsense isn't going to bring too much
45 to the equation but these are humanities we're
46 considerings social theories which are consider
47 canning and if the Court can't bring a commonsense
 56

1 questioning of a conclusion to bear then the

2 evidentiary system for such evidence is unduly
3 curtailed and restricted.
4 And at paragraph 575 I say nor in concluding
5 that polygyny should not be legalizeded did
6 Dr. Henrich have regard to the history of 2293 and
7 how often it's been used or not used successfully
8 or otherwise. He he agreed that his proposition
9 was a speculative one. He drew for his
10 proposition on evolutionary psychology which as
11 described above has come under fire and in any
12 event of professor Shackleford testified that the
13 theory was pursued with him on cross-examination
14 when he was investigating this on
15 cross-examination.
16 Professor Henrich's theory about the potential
17 thread spread of polygamy if permitted seemed
18 terribly terribly unlikely. It's clear from
19 interest Henrich's testimony and his testimony his
20 conclusion about an increase in the incident of
21 polygamy relates simply to that not to the other
22 conduct which 293 extends to such as polyandry or
23 polyamoury. He writes in his expert report that
24 nothing of what we know about our species evolved
25 from either anthropological diversity indicates
26 that either polyandry or forms of group marriage
27 will spread beyond trivial frequencies.
28 And then I want to go My Lord just on the yes
29 I want to go finally in addressing Dr. Henrich to
30 tab 5 of the book to page 232. And here is where
31 the part of his work was examined and page 232
32 paragraph 508 the further suggestion from the
33 defender is once it they have left their
34 communities lost boys will embark on crime perhaps
35 together with other men somehow deprived by
36 polygyny of a meat. I submit this is utterly
37 absurd. Even assuming that the lost boy
38 phenomenon exists and Dr. Henrich's primary thesis
39 was that polygamy will lead to a significant
40 increase in men without mates which in his opinion
41 will lead to more murder and other crimes this
42 proposition was included in his first point on
43 page 21 where he said a non-trivial increase in
44 the incidents of polygyny would result in
45 increased crime, anti-social behaviour the pool of
46 unmarried males it would create and he spoke of
47 murder as the principal crime as found in his
 57

1 report page 24, 25, 28 and 40 typical was his

2 assertion in page 28 a male who finds had I am
3 self without access to females should be
4 dramatically more likely to take substantial risks
5 aimed increasing his opportunities for sex EG
6 theft, murder et cetera. One of the problems with
7 such an approach in a topic so amorphous as a
8 supposed link between polygyny and murder is there
9 is nothing whatever scientific in the development
10 of the thesis and I would go for times sake Chief
11 Justice I go over a page to paragraph 515 and
12 there I submit that the evidence on which the AGBC
13 draws to connect unmarried men more generally to
14 crime draws in large part from studies from China
15 and India and the situation is vastly different as
16 Dr. Henrich admitted. And more germane none of
17 the data that was taken from China and India had
18 nothing to do polygamy polygyny and the data even
19 otherwise is radically different. A continuing
20 concentration of unmarried men numbering in the
21 tens of millions was the subject of the
22 consideration in I believe that was in China. Not
23 isolated unmarried men scattered through society
24 the authors of one the cited studies notes
25 generally speaking we'll be seeing 29 to 33
26 million young surplus men in China. 28 to 32
27 million young surplus males India the same time.
28 These are conservative estimates. And maybe
29 closer to 40 million. About 97 percent of all
30 unmarried persons age 28 to 49 in China are male.
31 And exceptionally change willing social and
32 demographic conditions in which to conduct the
33 research make it very different from here.
34 Professor Wu who has not familiar with the studies
35 but has done research in China that noted a link
36 angle between crime and gender imbalance there is
37 hard to study given it's a transient population
38 migrant population moving in and out of the
39 province hard to control. 236 paragraph 516
40 Dr. Henrich did not have any of his own research
41 to rely on for the connection he drew between lost
42 boys or unmarried men more generally and crime.
43 He relied on the writing of Nina Edlund
44 paradoxically the reason for the extra men in
45 China being the single child policy was thought by
46 Edlund and Dr. Henrich to lead to opposite
47 conclusion from that postulated by Dr. Henrich,
 58

1 i.e. less violence on the assumption male children

2 are exceptionally valued in China and thus such
3 children should be less likely to commit crimes
4 than boys of previous generations second, the
5 policy limiting family size opens up opportunities
6 in the labour market and ought to decrease
7 people's likelihood of committing crimes so it's
8 not significant so it's significant to despite
9 these pressures crime actually went up so if some
10 kind of commonsense test had been applied in the
11 face of Edlund's work it would be obvious that if
12 there is an increase in the crime itself a
13 difficult assumption because we no have scope
14 methodology of the stats there exist for March
15 compelling explanations for the increase apart
16 from a single child policy. Period and question.
17 Most chaotic in recent Chinese history the
18 government are notorious. 199 unprecedented from
19 peasant farms to urban ghettos with incalculable
20 disruption and chaos. It is without I submit
21 absurd to develop a theorys a c Henrich has done
22 leading from a single child policy in China to
23 polygyny leading to more murder in Canada and I
24 respectfully ask the Court to find that these
25 studies are unsound and unhelpful in our analysis
26 of the realities regarding polygamy in this
27 country.
28 And that takes me Chief Justice to the final
29 part of my submissions under Oakes and the final
30 stage as it is called in the Oakes test.
31 And if I can go to Oakes one more -- I think
32 it's one more time. In the white book at tab 5.
33 And this time if I can ask you to turn to page
34 numbered 140. And Chief Justice Dickson he said
35 at the top of that page he said even if an
36 objective is of sufficient importance and the
37 first two elements of the proportionality test is
38 satisfied it's still possible that because of the
39 severity of the deleterious effects of a measure
40 on individuals or groups the measure will not be
41 justified by the purposes it is intended to serve.
42 And also if I may make a reference to hutter
43 and brethren which is is at the next tab at tab 6
44 and ask you to turn to page numbered 605 and Chief
45 Justice McLaughlin has referenced above a so
46 called debate in a sense between Professor Hogg
47 who was -- this is up in her paragraph 75 on page
 59

1 605. Professor hog was implying or writing that

2 the fourth -- the last part of the Oakes analysis
3 is rendered redundant by the earlier parts of the
4 Oakes analysis and Chief Justice McLachlin
5 rejected that and endorsed what Chief Justice
6 Dickson had done in Oakess in that regard. And so
7 she says at paragraph 76 she says it may be
8 questioned a pressing goal could fail at the final
9 inquiry at proportionality of effects the answer
10 lies in the fact that the first three stage as of
11 Oakes only the fourth branch takes full account of
12 the severity of the deleterious effects of a
13 measure upon individuals or groups and she quotes
14 president Barrett from Israel and he will I said
15 and this is at page 606 theology school and the
16 graduate of proportionality in the strict sense
17 examining objective is commensurate with the
18 deleterious effect upon the human right and as she
19 says the Chief Justice down at paragraph 77 the
20 final stage of the Oakes of Oakes allow force a
21 broader assessment of whether the benefits of
22 impugned law are worth the cost of the rights
23 limitation and finally she says or not quite
24 finally but at page 607 she says in paragraph 78
25 in my view this is a case with a decisive analysis
26 falls to be done at the final stage of Oakess and
27 further down in cases such as this where the
28 demand is that the right be fully expected without
29 compromise and that -- because the claimants there
30 said it was all or nothing on the photograph on
31 the license they said there was no compromise.
32 She said in cases such as this where the demand is
33 the right be fully respected without compromise
34 justification of the law imposing the limit will
35 often turn on whether the deleterious effects are
36 out of proportion to the public good achieved by
37 the infringing measure.
38 And the last part of what I have got there is
39 the last page in the tab is in her deleterious
40 effects analysis in that case at page 614 and
41 again in this instance I put these two paragraphs
42 in by way of contrast between a driver's licence a
43 photograph on a driver's licence on the one hand
44 which is way off to the side of the religious
45 beliefs if I can put it that way for Hutterian
46 Brethren they argued it violated a commandment and
47 argued it intruded on their religious rights but
 60

1 it is marginal by comparison with what is at the

2 core of the religious beliefs of the FLDS with
3 regard to whom they may marry.
4 And in her paragraph 98 Chief Justice
5 McLachlin writes on the recovered before us it is
6 impossible to conclude that the could lo any
7 members have been deprived of a meaningful choice
8 to follow or not follow the edicts of their
9 religion. I say our case for obvious reasons the
10 case at bar in this reference is the very
11 opposite. Its impossible in our case I would
12 submit not to conclude that fundamentalists have
13 been deprived of a meaningful choice to follow or
14 not follow the edicts of their religion by 293 and
15 she says in paragraph 99 I conclude that the
16 impact of the limit on religious practice imposed
17 by universe sal photograph requirement for
18 obtaining a driver's licence colony members will
19 need to make alter in an a tiff aircrafts for
20 Highway transport. This will impose financial
21 cost and apart from the tradition of being
22 self-sufficient these costs are not trivial but on
23 the record they do not rise to the level of
24 seriously affecting the claimants right to pursue
25 their religion. They do not negate the choice
26 that lies at the heart of freedom of religion and
27 this constitutional reference is the very
28 opposite. This constitutional reference does rise
29 to the level obviously of seriously affecting the
30 claimants right to pursue their religion. It does
31 negate the choice that lies at the heart of
32 freedom of religion.
33 And with with that Chief Justice I would enter
34 into the Oakes analysis in its final stage and I
35 would be able to conclude within with the time
36 that we have all martialed amongst ourselves if we
37 have a break now I can conclude that after that
38 for my part.
39 THE COURT: Where are we after that.
40 MR. MACINTOSH: I will likely be going to the end of
41 the day.
42 THE COURT: I see. Okay.
43 MR. MACINTOSH: Then there are three submissions for
44 you to hear tomorrow and the three counsel have
45 adviseded me of their confidence that is a you
46 will well manageable in that day.
47 THE COURT: Okay. And the reply?
 61

1 there is Thursday off as I understand.

2 THE COURT: Thursday I have meetings and then the reply
3 is on Friday we anticipate about an hour for
4 British Columbia.
5 THE COURT: Okay. And Canada?
6 MR. REIMER: I would say that's a fair estimate for us
7 as well.
8 THE COURT: Excellent. Thank you.
9 THE CLERK: Order in court. Court is adjourned for
10 afternoon recess.
11
12 (AFTERNOON RECESS)
13
14 THE CLERK: Order in court.
15 MR. MACINTOSH: My Lord to repeat there's no reason why
16 why I shouldn't be done by 4 and what I will do is
17 carry and conclude the last part of the Oakes
18 analysis. And then I will speak briefly to tab 9
19 in our submission which is is our submission as to
20 the proper response to abuse in case it's
21 contextually helpful for the reference.
22 And finally had I will say a word or two with
23 regard to a point concerning immigration and that
24 will conclude my submissions.
25 And so just before the break I was reading
26 from Oakes and I was reading from Hutterian to
27 introduce the last part of the analysis and then
28 in the written argument at tab 8 at page 296 one
29 side of the Oakes equation an as it were is
30 described the deleterious effects of 293 and these
31 are ones which have been described to you many
32 times.
33 And the criminalization of religious practice
34 the condemnation of all polygamy regardless of any
35 harm or not, the criminalization of all
36 polygamists and takes away the freedom of choice
37 in a matter which is inherently private.
38 Paragraph 655 I submit this. Ultimately a
39 fair assessment of 293's constitutionality must
40 account for these inescapable facts there exist
41 many polygamous conjugal relationships and which
42 create happy healthy nurturing pursued out of deep
43 religious conviction. Except in cases of coercian
44 or abuse relationship are of profound personal
45 significance to their participants and 293
46 criminalizes every polygamous conjugal union and
47 every polygamist and when we speak next of the
 62

1 benefit was the section I suppose we put benefits

2 in quotation marks it's a supposed benefits and we
3 enumerate those beginning at paragraph 658, 293
4 has not proved at all effective and cannot be
5 expected to be so in the future. Paragraph 659.
6 The second factor undermining any social or legal
7 benefit of 293 is that there exists a host of
8 valid laws targeting the real abuse that can occur
9 in any familial context including polygamy. The
10 third factor in paragraph 660 is that the
11 criminalization of all polygamy detached from any
12 particularized harm within a particular
13 relationship causes polygamists to withdraw from
14 mainstream society and as we say at the end of
15 that paragraph, the criminalization of polygamy
16 there by makes the investigation and prosecution
17 of actual abuse more difficult. Section 293
18 fourth effect similar to but someone different
19 from what is said about 658 paragraph 658 is that
20 it criminalizes a practice that is unlikely to be
21 deterred and at paragraph 662 the last failing of
22 293 is sends the wrong message in terms of
23 deinterpret rents if the harm that motivates a
24 prosecution is that a child is being sexually
25 exploited in a plural marriage then a conviction
26 for polygamy does not to convey society's
27 denunciation of the conduct but a conviction for
28 sexual exploitation would.
29 Paragraph 664 for the reasons set out above
30 the charter breaches the 293 entails cannot be
31 justifieded under section 1, 293 is drastically
32 overbroad and I -- if you can bear with with this
33 repetitious from when I spoke on the first day
34 chief Justice a week ago yesterday.
35 I submit now as I did then that the best
36 evidence of overbreadth is the position of five of
37 defenders.
38 The AGBC asks that the section I say be
39 rewritten in effect to be confined to polygyny
40 recognizing overbreadth. West Coast Leaf asks
41 that 293 be read down in some manner to be
42 confineded to those who are exploited because I
43 say it recognizes the overbreadth.
44 BC teachers federation asks it be interpreted
45 so women are are not criminalized but instead are
46 are protected recognizing overbreadth. And the
47 CCC, the Canadian coalition for the rights of
 63

1 children ask that it be interpreted so that

2 children are not criminalized recognizing the
3 overbreadth and the AG Canada asks that 293
4 applies not only with an a marriage ceremony --
5 asks that it be only applied with a marriage
6 ceremony which I submit is again an effort to read
7 it down.
8 Or at least to interpret it as the AG Canada
9 says in a way that is narrow.
10 But those are the strongest indicators of
11 overbreadth in my submission.
12 And finally here at 665 to conclude we make
13 the point that there is nothing in the core of 293
14 that will be preserved there is nothing properly
15 left. It could not be read counsel lawfully and
16 therefore it must fail in my respectful
17 submission.
18 Now, in part 9 we have put in this part about
19 what happens is appropriate in dealing with
20 polygamous unions and one of the things that we
21 submit there in paragraphs 669 to 671 is that
22 those in authority work together somewhat as an
23 appears to be happening in Utah under its Attorney
24 General to get at what the real harms are and
25 prosecute them productively and efficiently. And
26 fairly.
27 And the one suggestion we adhere that would
28 supplement appendix B in the written argument
29 would be the consideration of a further crime
30 which would be the criminalization of forced major
31 forced conjugal relationships and that would be
32 the case whether they were polygamous or whether
33 they were monogamous. And as we say in paragraph
34 674 and following the united nations declaration
35 of human rights condemns forced marriage and 675
36 and following Britain has instituted a civil
37 remedy thus far considering a criminal remedy
38 against forced marriage and as we say at 677 and
39 following Belgium and Norway have criminalized
40 force marriage and Austria is considering doing
41 so.
42 Now, this takes me to something Ms. Greathead
43 submitted for the AGBC two weeks ago now two weeks
44 ago today. Because you may recall My Lord she
45 took you through evidence relating to the
46 notorious Warren Jeffs and the fact that he
47 appears to be or to have been marrying off young
 64

1 people in particularly young girls some being very

2 young and the implication for obvious reasons is
3 these didn't -- these were not marriages of
4 consent or free will in any proper sense. In any
5 sense.
6 Here is the point there, My Lord. When Jeffs
7 does that in respect of a machine's first major a
8 women's first major a young girl's first marriage
9 which appears to have been happening on this
10 evidence because it starts somewhere. So if he's
11 having a young girl get married when there's no
12 proper reason on earth why she should be or a
13 young man of course that's not polygamous at that
14 stage but it's harmful. It's bad. It's wrong.
15 And it ought to be criminal but it's not
16 polygamous. It's monogamous. The first time
17 Jeffs inflicts this upon these young people
18 whether they are young men or young girls the
19 crime, the horrendous conduct. The bad conduct
20 call it as you will is not polygamy. It is
21 monogamy at that time.
22 And obviously that marriage is every bit as
23 bad because it's forced. It's a forced marriage.
24 It's every bit as bad whether it's the first one
25 or the second won and so let's look at section 293
26 in two respects in that context. It misses the
27 real by focussing on polygamy rather than on force
28 or coercion or exploitation. Because it's the
29 forced coerced exploited union that is the crime.
30 It is not whether it's the first or the second and
31 the second frailty of 293 that comes from that
32 instance of Jeffs with these tragic children it
33 would seem, is that 293 doesn't do anything to
34 alleviate the problem. Nothing. Even if it were
35 in force to be tried it's not polygamy that's why
36 forceded marriage is the evil and that's can why
37 we submit in part 9 forced major forced conjugal
38 relations are what should be criminalized whether
39 it be in the context of monogamy or in the context
40 of polygamy and with regard to the immigration
41 point that was raised in had the course of the
42 attorney's submissions at least those of AG Canada
43 My Lord in our volume 2 Part VII at page 2727
44 following and it's in appendix B at page 17. And
45 orally I would submit only this. I do
46 respectfully submit that immigration gets raised
47 here somewhat inter row rum as an issue in the
 65

1 context of this reference on the notion that

2 polygamous will be sort of waiting at the gate on
3 the outcome here and the main point on that
4 My Lord is this, immigration policy and
5 immigration law is not founded on criminality. So
6 in the immigration Act in the immigration Act of
7 course one of the basis for barring someone from
8 entering the country can be criminal conduct but
9 it's not as if immigration law and practice is
10 centered on that. Immigration law does not rest
11 on that. If 293 is struck down Canada has not
12 there by legalized polygamy. If 293 is struck
13 down polygamy is not legalized and Canada need not
14 recognize polygamous practice when it deals with
15 prospective immigrants and we conclude at that on
16 that issue in our written submission at paragraph
17 583 which is in Part VII after we finished in the
18 immigration analysis and we say in paragraph 583
19 the provisions we've cited above are sufficient to
20 prevent immigration concerns. In any event,
21 however, it is well within Parliament's
22 constitutional authority to amend the immigration
23 Act so as to make polygamy a distinct and express
24 ground of inadmissibility. This ises the practice
25 under the US immigration law where separate and
26 apart from considerations of criminality it's
27 provided that any immigrant was coming into the
28 United States to practice polygamy is
29 inadmissible.
30 And those are my submissions, My Lord
31 THE COURT: Thank you, Mr. Macintosh very much then I
32 take it we're off until tomorrow morning.
33 MR. MACINTOSH: I believe so My Lord that's correct.
34 And I'm assured we're in good time.
35 THE COURT: So 10 o'clock tomorrow.
36 THE CLERK: Order in court. Court is adjourned until
37 April 13th, 2011 at 10 a.m.
38 (Proceedings adjourned at 3:34 p.m.)
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