11-22-10 Transcript - Proceedings at Canadian Polygamy Reference Case - Day 1

1
Introductions
1 November 22, 2010

2 Vancouver, B.C.
3
4 (DAY 1)
5 (PROCEEDINGS COMMENCED)
6
7 THE CLERK: In the Supreme Court of British Columbia at
8 Vancouver on this 22nd day of November, 2010,
9 calling the matter of concerning the
10 constitutionality of section 293 of the Criminal
11 Code, My Lord.
12 THE COURT: Good morning, counsel. Mr. Jones?
13 MR. JONES: Good morning. My Lord Chief Justice, it's
14 Craig Jones for the Attorney General of British
15 Columbia. With me at the counsel table is
16 Ms. Leah Greathead, and we have three other
17 lawyers sitting in the witness box: Freya Zaltz,
18 Karen Horsman, and Sarah Bevan.
19 THE COURT: Thank you.
20 MS. STRACHAN: My Lord, Deborah Strachan, appearing for
21 the Attorney General of Canada, and appearing with
22 me this morning to my left are Keith Reimer and
23 BJ Wray.
24 MR. MACINTOSH: Chief Justice, may it please the court,
25 G.K. Macintosh appearing as the amicus curiae, and
26 appearing with me, Chief Justice, are
27 T.A. Dickson, D-i-c-k-s-o-n, and Ms. Herbst, L.B.
28 Herbst.
29 MR. WICKETT: Good morning, My Lord, Wickett, initials
30 R.V., counsel for FLDS and Mr. Oler. With me is
31 Mr. Scarth, initials A, articling student.
32 MS. PONGRACIC-SPEIER: My Lord, Pongracic-Speier, first
33 initial M., for the British Columbia Civil
34 Liberties Association.
35 MR. CHRISTIE: D.H. Christie, My Lord, for Canadian
36 Association for Freedom of Expression.
37 MR. CHIPEUR: I'm Gerry Chipeur with Miller Thomson for
38 the Christian Legal Fellowship. With me is Ruth
39 Ross of the Christian Legal Fellowship and Jill
40 Wilkie of Miller Thomson.
41 MR. BAKER: Johnathan Baker for REAL Women of Canada.
42 MR. INCE: John Ince for the Canadian Polyamory
43 Advocacy Association.
45 MR. SAMUELS: My Lord, Brian Samuels for Stop Polygamy
46 in Canada. With me is Mr. Kieran Bridge and
47 Mr. Bob Deane and Ms. Jennifer Chan.
2
Introductions
1 MS. WINTERINGHAM: Chief Justice, Janet Winteringham

2 for West Coast LEAF. With me is Deanne Gaffar and
3 Kasari Govender.
4 MS. TRASK: Good morning, My Lord, Robin Trask for the
5 BC Teachers' Federation.
6 MR. OLTHUIS: My Lord, Olthuis, O-l-t-h-u-i-s, initials
7 B.B., for the CCRC and the David Asper Centre.
8 With me is Ms. Milne, initial C.
9 MR. HENRY: My Lord, D. Henry, counsel for CBC.
10 THE COURT: Ms. Judd is my law officer who is assisting
11 me on the application and she's present in court
12 as is Ms. McBride -- or will be shortly, another
13 law officer of the clerk.
14 Counsel, we're embarking upon a historical
15 reference, and that has not been lost, I'm sure,
16 on all the participants. I make one rule at the
17 beginning and not with any intention of making
18 light of any aspect of the proceedings, but from
19 now on no one can move. Just for the purpose of
20 the court recording and my own sanity, I have to
21 know where everyone is at all times, so I'd
22 appreciate it if you'd stay where you are and
23 we'll make a map.
24 As well, I understand, Madam Registrar has
25 suggested that when each of you speak, regardless
26 of where we are during the day, that you identify
27 yourself as well when you're taking the stand for
28 the purposes of the recording so that we can make
29 sense of it as we go along.
30 Now, just before we start applications, are
31 there any issues with respect to the
32 infrastructure that we're experiencing right now?
33 Everybody comfortable? Have we turned away any
34 from the gallery because of lack of space?
35 THE SHERIFF: No, My Lord.
36 THE COURT: Okay. Very well then. Am I heard in the
37 back of the room?
38 SPEAKER FROM THE GALLERY: Yes.
39 THE COURT: Okay. Thank you.
40 Then I understand we were going to have
41 opening statements and then we were going to have
42 a number of brief applications, but there is one
43 application that was brought late in the day and
44 it's the application of the CBC. Mr. Henry is
45 here. I would propose, subject to your
46 submissions, that we hear that application.
47 Good. Then, Mr. Henry, you are up and go
3
Submissions by Mr. Henry
1 ahead.
2 What I thought I would do is let Mr. Henry
3 just in the briefest way say what his application
4 is about and then I thought I would -- everyone in
5 the room, I presume, has notice of it?
6 MR. HENRY: Yes, I -- yes, My Lord.
7 THE COURT: Then I would ask generally where the
8 parties sit with respect to the application so
9 that I get a feeling for the level of opposition
10 or support and that might help us get through the
11 day. And you're from Toronto, Mr. Henry?
12 MR. HENRY: I am.
13 THE COURT: That's all right.
14 MR. HENRY: I came specifically for the cold weather
15 because apparently it's balmy in Toronto today.
16 My Lord, you noted at the outset that this was
17 a historic occasion. I note it's also the first
18 application that the court has received under its
19 television coverage rules, which were brought in,
20 I believe, eight years ago, and there have been
21 difficulties with that rule which we've attempted
22 to address in our application.
23 This is -- this case is -- has been chosen
24 because it's a matter of tremendous public
25 interest, as the court has noted, and the -- one
26 only has to look at the array of counsel before
27 you to recognize that this is a matter of
28 tremendous public importance and public interest.
29 The fact that the gallery is also full is also an
30 indication of the public's interest in this.
31 Briefly what we'd like to do is permit the
32 public at large to see these proceedings in a
33 convenient manner, and we're talking about the
34 public portion of the proceedings, that is
35 whatever can be reported publicly we would like to
36 be able to show publicly.
37 THE COURT: Okay. Can I just stop you?
38 MR. HENRY: Certainly.
39 THE COURT: Cellphones are a no-no in the courtroom.
40 Thank you. That ring.
41 MR. HENRY: The discussion that we have had among
42 counsel leading up to now, it seemed to generate
43 widespread consent, I believe, for openings,
44 closings, submissions of counsel, and I believe
45 expert witnesses being televised. There may be
46 further discussion of that today.
47 Our view, as I indicated, is that whatever is
4
1 public we should be able to show, subject to

2 publication bans which apply to all media.
3 To the extent there is a distinct desire to
4 restrict television camera access, as opposed to
5 other forms of media, we could seek the
6 opportunity not to deal with that issue now, but
7 to address that when -- before that issue arises.
8 We understand that witnesses are not being
9 examined this week. That will be an issue that
10 will come up later and there will be a variety of
11 individual circumstances that we thought would be
12 useful to explore from the public interest
13 perspective.
14 The guidelines, as the court knows, talk
15 about consent of the individual witnesses, and
16 also, as My Lord knows, when this issue was first
17 debated in court in the context of the proceedings
18 against Premier Clark, the judge ruled that the
19 guidelines are merely that, they are guidelines.
20 They are not to be binding on the -- on a judge in
21 a particular case with -- where obviously justice
22 has to be taken into consideration in the case.
23 And there are a number of ways of analyzing how
24 you might approach your task in that regard.
25 What we're seeking is when the time comes to
26 have the opportunity to address what those -- how
27 those factors would play into a decision by you as
28 to whether or not in any individual case the
29 camera should be shut off or not.
30 THE COURT: Okay. So are you saying that we can deal
31 with a lot of the coverage now, and by "a lot of
32 the coverage," I mean we can have an order now
33 that we hash through that covers openings,
34 closings, submissions, and experts?
35 MR. HENRY: I believe so, and --
36 THE COURT: And then hive off the consideration of how
37 individuals who might wish to come forward to
38 speak to their affidavits are dealt with, and
39 there perhaps deal with it on an individual basis?
41 THE COURT: Okay.
42 MR. HENRY: The tests, which we would then want the
43 court to consider just so you'd have the overall
44 view would be the Dagenais/Mentuk test or the
45 2(b)(1) Oakes analysis. Ultimately there would be
46 a discussion as to whether or not it's necessary
47 in the circumstances for that kind of coverage not
5
1 to be in place. That would be the structure of

2 the debate that we would hope would happen.
3 THE COURT: Well, you know, that -- therein lies the --
4 a good deal part of the difficulty. The
5 Dagenais/Mentuk test hasn't been applied, has it,
6 with respect to television coverage of witnesses?
7 MR. HENRY: I don't believe so, no, I don't --
8 THE COURT: So, you know, a judge's first reaction is
9 that Dagenais-Mentuk to the extent, if I may put
10 it this way, puts the onus on the person not
11 wishing to be covered.
12 MR. HENRY: Right.
13 THE COURT: To the extent that happens, that has not
14 been applied in a television coverage situation?
15 MR. HENRY: No, but we have to look -- if we do not
16 look to the guidelines and if we look to the legal
17 principles that apply, how would we -- what do we
18 draw from, and we can draw from section 2(b),
19 which has specifically the words in it "freedom of
20 the press and other media of communication," which
21 must have some meaning. This is another medium of
22 communication, so we would begin from that 2(b)
23 ground and then section 1 on an Oakes test could
24 be applied.
25 Dagenais/Mentuk was a way of dealing with
26 publication restrictions in general, and the
27 supreme court has said quite clearly in many cases
28 that it applies to all discretionary orders
29 dealing with publication restrictions, so if we're
30 looking for guidance from the law, that's where we
31 would draw the wellspring.
32 Having said that, the discussion -- we're
33 quite cognizant of the fact that this is the first
34 time these rules for television would be applied
35 in British Columbia, and we would like to make the
36 process work, and we'll be sensitive to the
37 concerns that are raised.
38 The main thing, though, is that we're seeking
39 the opportunity to make submissions on a
40 fact-based consideration so that Your Lordship can
41 make a decision in the public interest, and not
42 simply have the decision made for you by whatever
43 considerations there are from motivating any one
44 particular witness.
45 For example, this may not be an accurate
46 example in the context of this case, if somebody
47 has given interviews publicly and has spoken
6
1 publicly and has -- is known publicly and comes

2 into the courtroom and says they don't want their
3 testimony to be published. They're in a different
4 position than somebody who has -- is not known and
5 has never had their testimony published, but the
6 reason to defer that discussion -- and I really
7 don't think we ought to have it now -- is because
8 if the cameras are permitted, we believe that --
9 based on our past experience with cameras and
10 other proceedings -- that people will become
11 comfortable with what the camera does and doesn't
12 do, and that may allay some concerns as time goes
13 on.
14 In my past experience, I remember this goes
15 back a few years and the Grange inquiry into the
16 deaths of Toronto Sick Children's Hospital,
17 John Sopinka, as he then was, was representing
18 Susan Nelles who was the focus of that inquiry.
19 He brought an application in front of
20 Justice Grange to ban cameras from the entire
21 proceeding at the outset, and Justice Grange, who
22 had some experience with an experiment we had done
23 just before in courts, said, well, we'll defer
24 that, and when the time came for Ms. Nelles to
25 testify, Mr. Sopinka did not oppose cameras and
26 later conceded that it was -- he was very glad
27 that the cameras were there for that testimony.
28 So there is a process of acclimatization perhaps
29 that would assist everyone in making submissions
30 on the subject.
31 The -- our submission, briefly, talks about
32 the makeup of the -- the set-up within the room.
33 I've brought to the court an exhibit, which I
34 can't leave with the court, this is the --
35 Exhibit A, I suppose it's a camera, it's an
36 internet camera, and one of two that would be
37 available to provide internet coverage. That
38 could, for example, sit on the end of that -- your
39 bench to capture the lawyer and the witness.
40 Another similar one could be in the jury box, or
41 by the pillar, and between those two cameras they
42 could silently without extra light, without any
43 additional disruption, bring the proceedings to
44 the public.
45 THE COURT: And that's it for the camera?
46 MR. HENRY: For the internet -- for internet coverage,
47 yes.
7
1 THE COURT: Right. Okay. Now -- and could there be a

2 kill switch somewhere?
3 MR. HENRY: Well, what we're suggesting is that we are
4 going to plug into the audio of the court system,
5 the sound system, so that if there was any concern
6 about that audio going out, that kill button could
7 easily be installed. If the court desired another
8 kill button, the clerk could be provided with an
9 additional kill button.
10 THE COURT: Now, when we talk about plugging in, and
11 I'm just throwing these out, there's a lot of
12 issues surrounding this --
14 THE COURT: -- and let me underline that we've got to
15 get it right. If we're going to do this -- "if"
16 -- this has to be done properly, because it will
17 be the example held up throughout the province in
18 the future as to whether this process is possible,
19 given the traditions of this forum of dispute
20 resolution, so this is a really important thing to
21 get right.
22 Okay. I know we're all on the same page
23 there.
25 THE COURT: You talk about plugging into things. Now,
26 you've had some preliminary discussions, but you
27 appreciate that there are significant
28 ramifications to plugging into things in this
29 courthouse and you're alive to that.
30 MR. HENRY: Yes, certainly. We've had discussions --
31 we've been able to have discussions with court's
32 IT personnel and with the court services, and we
33 met with them and the sheriff to get a general lay
34 of land to determine what the practical issues
35 are, one of which, for example, involved stringing
36 of cables, for example.
37 I've described to you the internet cameras.
38 They provide a certain quality of image, but it
39 might be useful on the opening submissions, for
40 example, to have a higher quality camera that is
41 also supplementing that. And what we could do is
42 have alongside the other cameras in similar
43 positions two cameras that would capture those
44 higher quality images on one day, two days, a few
45 days, whatever made sense. The cables would be
46 strung, we understand, through the flooring, down
47 to the media room that is below us. There are
8
1 media offices that are below us and the

2 installation would require a couple of hundred
3 feet of cable that would be, we would propose,
4 permanently in place so we don't have to do this
5 again, that could then be tapped into in case
6 another case comes along where cameras could be
7 set up to do that.
8 So we're conscious of the cabling concerns,
9 we've talked about how lines could be set up.
10 We've proposed that in the media office below
11 there would be a box that would be installed to
12 allow feeds to other media for pooling purposes.
13 The court could take a feed off of that, and our
14 -- a person who would switch between cameras could
15 be situated below, making sure that the camera's
16 in the right place at the right time, at least
17 focused on the right place at the right time,
18 downstairs so that there would be effectively no
19 disruption in the courtroom. It would be
20 effectively the same room that you're used to with
21 a couple of cameras in the background, a few
22 cameras in the background.
23 In our experience, those cameras tend to blend
24 into the background furniture. The broadcast
25 quality cameras would require personnel to man
26 them and to swivel them on those few days.
27 And in most courts and most inquiries that we
28 set up camera coverage for, that's the set-up.
29 Because this is a two-and-a-half-month proceeding,
30 it's anticipated, we didn't think that broadcast
31 cameras would be justified for the entire
32 proceeding, and the internet cameras would allow
33 members of the public to watch the entire
34 proceedings more seamlessly that way and without
35 additional personnel in the room.
36 As far as the audio feed from the court sound
37 system is concerned, we've discussed that with the
38 court and it is of -- we believe it'll be of high
39 enough quality so that it won't be necessary for
40 us to add our own microphones in the courtroom.
41 The objective obviously is to ensure that everyone
42 is heard, and so that no one is seen to be
43 speaking but no one can hear them speak.
44 In paragraph B of our submission, I think
45 that -- now that we've got the media room
46 potentially available, then that issue is probably
47 solved, there's no need to modify paragraph 6(F).
9
1 Paragraph C of our submission, on page 3,

2 talks about visual coverage of members of the
3 public in attendance. That then could pose
4 technological challenges which we can try to
5 overcome, but as a practical matter when a camera
6 is aimed at lawyers who are speaking, there is the
7 possibility that people in the background could be
8 shown. I believe -- and I wasn't a part of the
9 discussion that led to these rules, but I believe
10 the desire must have been to avoid a focus on
11 someone directly connected to the case who is
12 upset or is following in a particular way the
13 proceedings. Certainly that is not what is
14 intended by our coverage. Our coverage would be
15 to show the lawyers who are speaking and to show
16 the witness and to show Your Lordship.
17 That raised the question as to whether people
18 can stay, as you suggested, sitting where they are
19 to speak or whether they should come to the podium
20 when they're addressing the witnesses in the
21 court. It's easier from a composition -- a shot
22 composition point of view to have everyone at one
23 podium, but if to the extent we would be permitted
24 to show a wide shot of the lawyers in attendance,
25 we could do that. There is the possibility of
26 spillage of people in the background who would be
27 caught in that picture. Something we can try to
28 minimize but that is the reality which we would
29 seek some adjustment on.
30 Addressed in our brief submission, how to deal
31 with those subject to anonymity orders if they
32 should attend in court, noting that people who are
33 subject to those orders, first of all wouldn't be
34 identified regardless as people who are subject to
35 those orders, so people wouldn't know that they
36 are witnesses. They could be just members of the
37 public. But also they would know in advance that
38 if they come in that spillage could be an issue.
39 What I propose instead of going through all of
40 the camera placement with you in this proceeding,
41 is if the concept is all right, during the course
42 of the day -- if we are allowed to set up cameras,
43 during the course of the day we could show
44 Your Lordship what the pictures would look like to
45 get approval for the specific locations and the
46 shots that would be composed in principle.
47 I've dealt with the issue of consent. There's
10
1 an issue on page -- the bottom of page 5,

2 paragraph E, which deals with interviews.
3 Normally when the media are televising the
4 proceeding, an inquiry or other proceeding,
5 there's often a desire to interview some of the
6 participants about what happened during the day or
7 what is likely to happen, and it would be very
8 convenient -- I know normally cameras are not
9 allowed in the corridors of the building, but it
10 would be to everyone's convenience, I would
11 suggest, for there to be an opportunity to have
12 cameras in a designated spot. As this courtroom
13 is on the end of the building, cameras could
14 easily point away from the rest of the building
15 and take -- do interviews within the -- in the
16 hallway outside in, I believe, in a calm and
17 serene manner in keeping with the location.
18 The -- I've given to you the rules that apply
19 in other jurisdictions. In Quebec that's
20 effectively how the new rules work. The Quebec
21 Chief Justice can designate a location where
22 cameras are allowed to be. I've suggested in our
23 rules that interview rooms might be possible to be
24 used for interviews, but having seen the interview
25 rooms, they're quite small and it might work for
26 one interview but certainly not in the interest of
27 many.
28 Paragraph F and G, I should address briefly.
29 F, deals with delay in coverage. The rules as
30 they are written would make coverage practically
31 impossible, from our point of view. The coverage
32 should be live for a variety of reasons, because
33 it is in -- you know, a reporter can literally
34 walk out of the room during the day and file a
35 story live, so why should the coverage be delayed?
36 And in terms of --
37 THE COURT: Well, forgive me, that analogy breaks down,
38 because the coverage is something that is of the
39 people participating that's -- if you breach one
40 of the rules, the print reporters can't do that,
41 they can't breach one of the rules of -- you know,
42 of showing somebody, but you can. So there is a
43 difference.
44 MR. HENRY: But we would be responsible to honour the
45 rules.
46 THE COURT: Well, I understand that. But again, could
47 there be a monitor set up at the law officer's
11
1 desk that would allow her to indicate that

2 something's being shown that can't be shown?
3 MR. HENRY: Well, the internet feed would be live -- as
4 proposed it would be live so that anyone would be
5 able to see it live including your clerk, and if
6 there was an issue, it would be known very quickly
7 and could be dealt with.
8 Paragraph G deals with the rules requiring
9 coverage to be recorded and kept for up to three
10 years. It's an impossibility in the circumstances
11 of this case because of the huge volume of video
12 information we are discussing. But if the court
13 itself wanted to keep a copy, as I said, the media
14 room downstairs would have a place where a DVD
15 copy could be made by the court for itself, and we
16 would facilitate that.
17 The other three housekeeping matters that are
18 in the application, laptops and BlackBerries.
19 Laptops, I understand, are normally not a problem
20 for journalists in British Columbia.
21 BlackBerries, we were told, would be a problem,
22 but we understand that's for technological reasons
23 and those could be overcome in the same way they
24 are overcome for lawyers who, I understand, are
25 allowed to use their BlackBerries provided they
26 tap into the Wi-Fi system of the court. So if
27 reporters could tap into the same Wi-Fi system,
28 that would facilitate their work greatly.
29 In paragraph B on page 7, "Access to Exhibits
30 and Documents." Clearly if we are providing live
31 coverage to the public, it would be beneficial to
32 assist the public in following the proceedings by
33 allowing them to see themselves documents or
34 exhibits as they are referred to in the
35 proceedings. There are logistical issues
36 associated with that but the earlier that access
37 is available, the easier it is to upload that
38 information and make it available. An example
39 where we used that was in the Trustcott case, and
40 if you go to the CBC website and put "Truscott" in
41 the search engine, you'll see that the lawyers
42 compendia of exhibits were all put up online and
43 members of the public are able to see what is
44 being referred to which is -- can be difficult.
45 THE COURT: Well, you know, subject to some
46 applications today, all of the exhibits -- or all
47 of the affidavits that have been filed to date
12
1 have been available to the press, and indeed many

2 members of the press have taken advantage of that
3 and accessed them.
4 MR. HENRY: I am aware of that. This is more of a
5 anticipatory concern, that if something comes up
6 at the last minute, we wouldn't want to make a
7 separate application for access to that. If
8 anyone -- the way we believe the law has evolved,
9 if anyone wishes to restrict access, it should be
10 up to them to make an application under the
11 Dagenais/Mentuk rubric to restrict access to the
12 exhibit in advance.
13 The most recent decision on that issue is
14 R. v. CBC in the Ontario Court of Appeal, a
15 decision of a unanimous panel written by Justice
16 Sharpe in the Ashley Smith case where video
17 exhibits were obtained.
18 And finally, C talks about some dispensation
19 from Your Lordship about the necessity to take
20 equipment away every Thursday evening, as we
21 anticipate that we will just be using the internet
22 cameras throughout, we would probably want to
23 leave them in place for Fridays and we don't --
24 since they would be turned off, we would hope that
25 wouldn't be a problem. And the other equipment
26 would be downstairs and so it wouldn't be a
27 problem. So those are briefly our submissions.
28 THE COURT: Okay. Now, I take it you'd like to come
29 back and expand on some of those, or?
30 MR. HENRY: Well, I'd like to hear what concerns anyone
31 may have. I should just add this in terms of
32 timing, it would -- I'm advised it would take a
33 few hours, at least four hours to set the -- set
34 this up, perhaps more, with the snaking of cables
35 underneath the floor and setting up the cameras
36 and making sure everything works because we
37 wouldn't want to start without it working. We
38 want to make sure it works. And given court
39 staff, who would want to monitor us, it would be
40 better ideally to have it during the day rather
41 than overnight.
42 So it would require some dispensation on that
43 front.
44 THE COURT: Well, while I've got you on a difficult
45 negotiating position, there will be costs
46 associated within the court service or the court
47 itself in assisting you in facilitating this.
13
1 Quite often if we were establishing a general

2 policy of television in the courtrooms many of
3 these costs would become, I presume, part of the
4 costs of court service, generally, although there
5 would be exceptions to that in the future I'm
6 sure, but if we're going to disrupt -- and I don't
7 use that word in a pejorative way -- the
8 proceedings to accommodate a late in the day
9 request -- and I don't use that in a pejorative
10 way either -- the court and the court services
11 branch shouldn't be out of pocket to accommodate
12 the CBC.
13 MR. HENRY: If it has to be done overnight so that
14 those people are not accommodated, that's fine.
15 We do know that there are costs associated with
16 court security staff that are going to be
17 necessary regardless. There is -- this whole
18 venture, I should say, My Lord, is not a costless
19 exercise.
20 CBC has estimated that the cost of having the
21 personnel available throughout the
22 two-and-a-half-month period to switch from camera
23 to camera, to install the equipment, will cost a
24 considerable amount of money. And the return,
25 from an economic point of view, is certainly not
26 there.
27 This is an investment that CBC is willing to
28 make to provide British Columbians and Canadians
29 with more open justice. As I sit here, we do not
30 have pool partners who are willing to share that
31 cost. We expect that they will want to share some
32 of it and have some of the images, so it's
33 something we're prepared to bear.
34 It would be nice if we had the support of the
35 court from a -- to the extent the court is able to
36 assist us in -- on the cost front, from its own
37 staff perspective. I do appreciate what you are
38 saying in terms of those costs.
39 THE COURT: Yes, the court faces definite budget
40 challenges, as we speak, without any additional
41 challenges coming into the picture in the times we
42 live in, unfortunately.
43 MR. HENRY: Well, we all -- we're all in the same boat
44 in a sense. At any rate, I don't -- I know about
45 extra security costs. I have no mandate to cover
46 the cost of counsel or anyone else as far as the
47 day is concerned but we certainly want to
14
1 facilitate the court's work and the earlier we can

2 make the installation happen, the earlier that the
3 proceedings can begin.
4 THE COURT: So let's just summarize it, for the
5 immediate point we would stand down for at least
6 four hours. We'd stand down today if you got your
7 order right now?
8 MR. HENRY: Yes.
9 THE COURT: And you would set up two internet cameras,
10 and you would tie down the time into the court
11 audio?
12 MR. HENRY: Yes.
13 THE COURT: And the cable down to the media room?
14 MR. HENRY: Yes.
15 THE COURT: And --
16 MR. HENRY: We would probably also -- because it's the
17 first day that we'll be gearing up for, we would
18 probably want to put in the two broadcast quality
19 cameras for the opening day.
20 THE COURT: Okay. And then we have to, today, iron out
21 some of these other issues that you've raised, but
22 with respect to the individuals and where the
23 burden lies with respect to individuals giving a
24 veto or rather putting the burden on them to show
25 why they shouldn't be filmed, that issue will be
26 fought another day.
27 MR. HENRY: That would be our proposal.
28 THE COURT: Okay. Okay. So possibly then with that
29 very general overview, and we'll come back to
30 specifics, I should get a feeling of the room, as
31 it were. Who would be generally in support of the
32 proposal, and I say generally because you may have
33 specific -- there may be nuances to it you
34 specifically oppose, so I'll say generally in
35 favour of what you've heard?
36 MR. JONES: My Lord, I think you can put us on the list
37 of generally in favour. We have, I think, some
38 important caveats. I don't know if you want to
39 hear them now or at all.
40 THE COURT: We'll come back to them. I just want to
41 get a feel. Generally in favour.
42 MR. MACINTOSH: My Lord, I am generally supportive of
43 it. I'm like Mr. Jones; I need to speak to
44 particulars.
45 THE COURT: Okay.
46 MR. WICKETT: My Lord, Robert Wickett, you may count me
47 in that camp as well.
15
1 THE COURT: Okay.

2 MS. PONGRACIC-SPEIER: My Lord,
3 Monique Pongracic-Speier for the BC Civil
4 Liberties, us too.
5 MR. CHRISTIE: D.H. Christie for the Canadian
6 Association for Freedom of Expression. We agree.
7 MR. CHIPEUR: Gerry Chipeur, Christian Legal
8 Fellowship. We consent.
9 MR. BAKER: Johnathan Baker, REAL Women of Canada. We
10 consent.
11 THE COURT: Now, just slow down. When I say -- you say
12 you consent, you don't have any even nuances you
13 want to speak to?
14 MR. BAKER: Well, I am concerned about the four hours
15 standing down because I'm going to have trouble on
16 Wednesday, it's shifted a day, but.
17 THE COURT: Well, everything might have to shift.
18 MR. BAKER: Yeah.
19 THE COURT: All right. That's going to happen in this
20 hearing.
21 MR. BAKER: But I agree in principle that it could be
22 covered.
23 THE COURT: Okay.
24 MR. INCE: John Ince for the CPAA, the same.
25 MR. SAMUELS: My Lord, on behalf of Stop Polygamy in
26 Canada, we take no position on the application.
27 THE COURT: Okay. Then who are adamantly opposed?
28 MS. STRACHAN: My Lord, Deborah Strachan, the Attorney
29 General of Canada is opposed to this application.
30 THE COURT: And when I say "opposed," by that I mean
31 there's nothing that can be done, as far as you're
32 concerned, to get you on side?
33 MS. STRACHAN: No, there isn't.
34 THE COURT: Right.
35 MS. WINTERINGHAM: For West Coast LEAF, Chief Justice,
36 we are opposed to the live broadcasting of any
37 part of the proceeding, and we object to the
38 broadcasting of any witness, expert or otherwise.
39 We'll take no position on whether or not
40 submissions are broadcast.
41 MS. TRASK: Your Lordship, BC Teachers' Federation, we
42 take no position on this application.
43 MR. OLTHUIS: My Lord, Brent Olthuis for the CCRC and
44 the Asper Centre. Our position is as outlined by
45 my friend, Ms. Winteringham. We take the same
46 position as West Coast LEAF.
47 THE COURT: Anybody else? Okay. So if I have it
16
Submissions by Mr. Jones
1 right, Canada, West Coast LEAF, and the CCRC are

2 opposed. West Coast LEAF and CCRC are opposed to
3 critical aspects of it, but not of everything.
4 And Canada is opposed to it as a matter of
5 principle in its entirety.
6 MS. STRACHAN: Yes.
7 THE COURT: Okay. I think what I'll do then is stand
8 down for the morning break. Now, this is a long
9 hearing, there's a lot of people involved. I
10 would like breaks to be 15 minutes and lunch hour
11 to be lunch hour or we'll talk about that later,
12 but I'm going to come back in 15 minutes and I
13 will expect everyone else to be here.
14 THE CLERK: Order in court. Court is adjourned for the
15 morning recess.
16
17 (MORNING RECESS)
18
19 THE CLERK: Order in court.
20 THE COURT: Thank you. Well, I think what we should do
21 at this point is hear from -- deal with the
22 applications as follows: We'll hear from those
23 generally in favour with their caveats; we'll then
24 hear from West Coast LEAF and CCRC; we'll then
25 hear from Canada; and then we'll hear from CBC
26 again, if that's acceptable.
27 MR. JONES: My Lord, for the benefit of the court
28 reporter, it's Jones, initial C., for the Attorney
29 General of British Columbia, and I'll be very
30 brief, My Lord. As you know, the AG is broadly
31 supportive of more open courts, and in particular,
32 where appropriate, cameras in the courtroom, and
33 that's our background to the position that we take
34 here.
35 Our default position -- or we believe the
36 default position of any order should be that
37 personal witnesses should not be on camera, and
38 that there should be some burden to shift that in
39 particular cases. We say this because this is an
40 unusual proceeding. The rules of evidence are
41 being modified to serve the unique purposes here
42 and we have a great deal of very private
43 testimony.
44 I want to make our position clear, although
45 we're not apparently dealing with this issue
46 today, the Attorney General does not believe in
47 this proceeding that any witness's personal
17
1 testimony should be broadcast without their

2 consent. I just want to say that again, we don't
3 believe any witness's personal testimony should be
4 broadcast without their consent.
5 And as Your Lordship is probably aware, there
6 are now some of the video affidavits that are
7 being broadcast over the internet. We would take
8 the position that those too should not be
9 broadcast without the witness's consent. Of
10 course that's not an issue before you here.
11 The overwhelming feeling that I had listening
12 to my friend Mr. Henry was a little bit of
13 trepidation with respect to timing. I'm concerned
14 about the haste of this project, and it's perhaps
15 nobody's fault; CBC wasn't at the earlier hearing.
16 I mentioned that a media outlet had contacted me
17 some time ago. That wasn't CBC. This is -- I
18 suppose they became aware of the opportunity quite
19 recently and they've acted quickly obviously in
20 putting this together, but Your Lordship is
21 correct that there's a lot of important issues
22 that require some careful thought, and if we do do
23 this, I think it's appropriate to do it by stages
24 as opposed to making too broad a decision at this
25 point.
26 I would propose that if Your Lordship is not
27 inclined to set up the cameras with -- today, if I
28 can make that assumption that that would be what
29 CBC would want to do, that there is sort of a
30 halfway house possibility, and that is that
31 invitations be made to film the closing portion of
32 this hearing. As Your Lordship knows, we have
33 currently booked off between now and January 31st,
34 with a break until Christmas, and we expect
35 that -- and particularly in light now that we have
36 everybody's arguments, we expect that the closing
37 submissions are going to be extremely
38 comprehensive, quite extensive in this case. At
39 that point of course the evidence will have been
40 filtered with respect to confidentiality and it
41 will be offered in a summary form during the
42 closings and I think that it would be
43 uncontroversial -- no, that might be ambitious,
44 less controversial at that time to have it.
45 Now, whether CBC would be interested in doing
46 it on that basis, I have no idea, but that's a --
47 I suppose a possible compromise position if the
18
Submissions by Mr. Macintosh
1 court was not inclined to entertain the present

2 application today.
3 I thought it might assist somewhat in the
4 deliberations just to hand up to the court the
5 tentative witness schedule that we've worked out
6 among the parties. And we've been focusing on the
7 expert witnesses, as you know, My Lord, we've
8 intended that they be -- that they be earlier in
9 the proceeding rather than later.
10 The reason I call this to your attention,
11 you'll see that this week Monday to Thursday is
12 set aside for openings and for preliminary
13 applications, but starting Monday we have the
14 testimony of Professor Campbell who, as you know
15 because of surgery, is very limited in her
16 availability. We've been very successful in
17 working out, I think, a schedule that does work
18 for everybody, but come Monday we're locked in,
19 we're committed to several of these witnesses on
20 particular days, and of course travel is being
21 planned accordingly.
22 So my final point, I suppose, is that the
23 most important consideration for us at this point
24 is to keep this hearing on the rails. All parties
25 have been extremely co-operative in a very
26 aggressive timeline, as Your Lordship knows, to
27 bring us to this point. We'll do whatever it
28 takes to accommodate Your Lordship's orders with
29 respect to televisation, and if it is necessary or
30 more convenient for us to start our opening today
31 and then set up the cameras overnight, or
32 whatever, we don't need to wait for the cameras,
33 from our point of view, to begin our opening.
34 We're in Your Lordship's hands in that respect.
35 So subject to any questions, that's ...
36 THE COURT: Thank you. Mr. MacIntosh.
37 MR. MACINTOSH: My Lord, the Amicus doesn't object to
38 the CBC or other media on a shared feed
39 broadcasting or televising in some other way the
40 opening submissions, or the submissions of counsel
41 on motions, or the closing arguments. Beyond
42 that, and of course we're then moving to
43 witnesses, it is my submission that this court's
44 practice direction ought to have application,
45 which in part, as the court knows, allows the
46 witness to determine whether he or she will be the
47 subject of televised coverage, and I say that
19
Submissions by Mr. Macintosh
1 going forward it's as simple as that. It ought to

2 be left to the witness in each case. And I would
3 say that the directive ought to be followed as it
4 embraces all witnesses, that is both lay witnesses
5 or personal witnesses and expert witnesses, and
6 it's up to each one of them and there is no burden
7 upon them. They get to do as they wish.
8 The timing of this application by the CBC was
9 ill-advised, in my respectful submission. It came
10 in on Friday. Surely, the CBC has known about
11 this court proceeding for many months. It's now
12 11:30 the first morning and we've proceeded
13 nowhere on the merits, and Mr. Jones was quite
14 right in pointing out the very tight schedule on
15 witnesses, and witness schedules as well obviously
16 have had to be -- been taken into account.
17 As it is for today, if we stand down, which I
18 don't object to, if we stand down for the CBC to
19 get its wiring in place, the court has had this
20 case suspended for a day, and 150 people or
21 whatever there are in this courtroom, have had
22 their expectations and schedules somewhat
23 jeopardized. And the problem with doing anything
24 else, My Lord, going forward, except simply using
25 the court practice directive, the problem with it
26 is that it won't be a half an hour motion by the
27 CBC to argue whether the witness has the onus or
28 whether the applicant has the onus on particular
29 coverage, whether the witness gets to say yes or
30 no.
31 As Your Lordship knows, this issue has been
32 in front of the Supreme Court of Canada a number
33 of times. There's a Supreme Court of Canada
34 decision under reserve right now with respect to
35 the media in the hallways of the court, and it is
36 conservative to say that that motion would occupy
37 three or four days of this court's time in this
38 proceeding, and I can confidently advise the court
39 we don't have three or four days for that. And if
40 the CBC had brought this application in July, we
41 could have argued it in three or four days and had
42 some determination.
43 And I think that the compromise that is
44 appropriate is that, as I say, we stand down
45 today, the CBC runs its wires through the court,
46 gets its cameras all set up, and we could proceed
47 with the openings tomorrow. And thereafter, the
20
Submissions by Mr. Wickett
Submissions by Mr. Christie
1 process would be that the practice direction will

2 be employed, and if a witness says it's okay, then
3 it's okay. And if a witness says that it's not,
4 then it's not.
5 And those are my submissions.
6 THE COURT: Thank you. Mr. Wickett?
7 MR. WICKETT: My Lord, I adopt the submissions of my
8 learned friend Mr. Macintosh with respect to this
9 application. I add only that my client's
10 particular concern of course is its witnesses,
11 many of whom are the anonymous witnesses that have
12 been referred to. There will be some discussion
13 before establishing -- and perhaps an application
14 before Your Lordship, to deal with what I would
15 say is the practical way or the practicalities of
16 accommodating those witnesses testimony, and
17 therefore I agree with the proposition that if
18 these proceedings are to be otherwise televised,
19 that the submissions regarding those particular
20 witnesses we'll await those practical solutions,
21 if I can put it that way. Interestingly enough,
22 it may well be that there will be no issue with
23 those anonymous witnesses if they are not
24 otherwise in the courtroom and identified
25 separately.
26 So other than that, My Lord, I adopt
27 Mr. Macintosh's submission.
28 THE COURT: Thank you. Who's next?
29 MR. CHRISTIE: My Lord, D.H. Christie for Canadian
30 Association for Freedom of Expression.
31 As this is an open court, available to be
32 seen by any member of the public, and any witness
33 who testifies in open court can be seen by any
34 member of the public, it would seem, in my
35 respectful submission, in principle that there's
36 no good reason why if a person can be seen by a
37 member of the public who has the liberty to attend
38 and to observe, that same person should not be
39 seen by any member of the public who has not got
40 the means to be here.
41 In principle, I would submit, this being a
42 matter of national importance, persons who are not
43 able to come to Vancouver should have as much
44 right to see the demeanour and the behaviour and
45 the testimony of any witness who is available in
46 open court to be seen by a member of the public as
47 any member of the public in Vancouver.
21
Submissions by Mr. Wickett
Submissions by Ms. Winteringham
1 This is not a private proceeding, and they're

2 not involved in a private proceeding. If they
3 choose to or if they're summoned by law and
4 required to attend and testify, then in my
5 respectful submission, any member of the public
6 anywhere in Canada should be able to see them and
7 be enabled to see them just as much as if they
8 could sit in the gallery and observe them
9 personally themselves. Thank you.
11 MS. PONGRACIC-SPEIER: My Lord,
12 Monique Pongracic-Speier for British Columbia
13 Civil Liberties, I would adopt the submissions of
14 Mr. Macintosh.
16 MR. CHIPEUR: Gerald Chipeur for the Christian Legal
17 Fellowship, we consent to the application.
18 THE COURT: Consent to the CBC's application?
19 MR. CHIPEUR: Yes.
20 THE COURT: I had you -- yes, so I don't need to hear
21 from the people consenting. I've marked down
22 Christian Legal Fellowship, Mr. Baker's client and
23 Mr. Ince's clients as consenting to the
24 application.
25 Okay. That then takes us to those opposed.
26 And perhaps I should hear the West Coast LEAF
27 first.
28 MS. WINTERINGHAM: Janet Winteringham, Chief Justice,
29 speaking for West Coast LEAF on this issue. And I
30 appreciate that we appear as an interested person,
31 so our role is somewhat different than actual
32 parties to the litigation, however I would ask
33 Your Lordship to keep in mind three policy
34 considerations in determining whether or not there
35 should be broadcasting in these proceedings.
36 And I'm going to refer first to
37 Madam Justice Bennett's decision in
38 R. v. Pilarinos, and I'm going to keep this
39 submission short and simply refer you to some of
40 the paragraphs in that decision. And you'll
41 recall when Madam Justice Bennett dealt with this
42 issue, it was done after five days of hearings and
43 she had extensive affidavits before her, and she
44 also appointed an amicus to argue the issue of
45 broadcast, so she had much evidence before her as
46 to concerns that the members of the public have
47 about broadcast, and what she said in Pilarinos
22
1 was, first of all, as I understand her reasons,

2 the Dagenais/Mentuk test does not apply when the
3 media is seeking expanded media coverage.
4 Nobody is seeking restricted access here.
5 This is not a publication banned case; this is a
6 situation where the CBC seek expanded coverage.
7 And I'm just going to refer briefly to
8 something that came out of Ontario, and I
9 apologize I don't have copies, and I'll just read
10 two sentences out for you. Many of the concerns
11 that Madam Justice Bennett noted in Pilarinos were
12 also noted in a 2006 report to the Attorney
13 General of Ontario of the panel on justice and the
14 media. And dealing with the issues that cameras
15 be permitted in the courtroom, the CBC wanted
16 cameras for all witnesses, submissions, et cetera,
17 everything to be broadcast, and what the panel
18 said was:
19
20 They drew the line at hearings involving the
21 oral testimony of witnesses, and the panel
22 concluded that our recommendation is
23 unanimous. All panel members believe in open
24 courts and wish to see Ontario set the
25 highest standards for public access.
26 Nevertheless, it is clear to all of us, that
27 the great majority of the groups who
28 participate in the justice system have a
29 grave and important concerns about
30 television. A recommendation to amend the
31 current restrictions on televising trials
32 would not be acceptable.
33
34 And again, that's a commission that was brought
35 together to address the very issue of cameras of
36 in the court. Madam Justice Bennett at paragraph
37 198 of her decision also talks about the chilling
38 effect of all participants in the justice system,
39 and concerns that she had with respect to whether
40 or not there would be a chilling effect on other
41 proceedings. And again, that followed five days
42 of hearing and evidence being filed on the point.
43 I'll move to my next point which is the live
44 broadcasting, and everybody in this courtroom may
45 abide by the rules and the bans that are currently
46 in place, however, this court has no control over
47 what happens in cyberspace, so you've got live
23
Submissions by Mr. Olthuis
1 streaming of either evidence or submissions of

2 counsel, and no control over any slip-ups that may
3 occur, counsel may be making submissions, they may
4 be excited and enthusiastic about submissions and
5 say somebody's name in error, a live broadcast
6 leaves that error out there, and Your Lordship
7 cannot recover it. There's no way to get that
8 back.
9 These are very sensitive issues that are
10 before this court. Of course it's not a criminal
11 proceeding so you need not worry about the fair
12 trial rights of the accused, but we know in the
13 back of our minds about the Criminal Code
14 protections that are available for witnesses in a
15 criminal trial testifying about offences that may
16 engage sexual misconduct.
17 I would simply refer Your Lordship to the last
18 four paragraphs in Madam Justice Bennett's
19 decision in Pilarinos, and I can hand up copies.
20 I'm not going to read those out, but the last four
21 paragraphs addresses the general concerns that she
22 had.
23 Those are our submissions, My Lord.
24 THE COURT: Thank you. The -- sorry, we have the CCRC.
25 MR. OLTHUIS: My Lord, I adopt the submissions of my
26 friend Ms. Winteringham. I was almost in a
27 position hearing Mr. Macintosh's submissions that
28 I was prepared to adopt his. As they came out I
29 thought they were largely in line with what we
30 were saying.
31 However, as Ms. Winteringham has pointed out
32 it's the issue of the live broadcast of counsel's
33 submissions that are of concern to us. Our
34 concern in particular is evidence that touches on
35 the rights of children. And I'm not sure if Your
36 Lordship has been given copies of the authorities
37 yet, and actually you probably don't need to turn
38 this up, you'll appreciate having read our opening
39 statement that we refer to the convention on the
40 rights of the child, and we would refer, in
41 particular on this application as well, to article
42 3.1 which indicates that in all actions concerned
43 with children including imports of law, the best
44 interests of the child shall be of primary
45 consideration. And on account of the particular
46 nature of this evidence in this case, My Lord, and
47 the concerns of an inadvertent slip-up that
24
Submissions by Ms. Strachan
1 Ms. Winteringham has adverted to, our concern

2 would be quite great that a live broadcast could
3 end up infringing the rights of children.
4 THE COURT: Thank you. Canada?
5 MS. STRACHAN: Thank you, My Lord. Deborah Strachan
6 for the Attorney General of Canada. I should say
7 two things at the outset. I, prior to this
8 morning had -- I've had no contact with the CBC.
9 No one has contacted us to seek our position in
10 any way.
11 Secondly, I should say that the Attorney
12 General of Canada is opposed to this application
13 in its entirety except for the application to
14 access for exhibits. The Attorney General of
15 Canada agrees with that part of the application,
16 and for your reference I appreciate Mr. Henry is
17 from Ontario, but our court of appeal dealt with
18 that very issue in the spring of this year in a
19 case by the name of Global TV v. The Attorney
20 General of British Columbia et al. I'm afraid I
21 don't have the citation at hand but I can get that
22 -- get it and copies of that decision for the
23 court over the luncheon break.
24 Insofar as the application to televise these
25 proceedings is concerned, the Attorney General of
26 Canada is -- embraces the open court principle,
27 however the matter of broadcasting court
28 proceedings is currently an issue before the
29 Supreme Court of Canada, in a case by the name of
30 Canadian Broadcasting Corporation et al v. The
31 Attorney General of Quebec et al. That appeal was
32 heard in March of this year; it is under reserve.
33 In that case, the court is considering the
34 constitutionality of court rules, Quebec Supreme
35 Court rules, that prohibit among other things the
36 broadcasting of official audio recordings of
37 hearing before that court.
38 In that case and others, the Attorney General
39 of Canada has consistently maintained that
40 television cameras should not be given access to
41 televise proceedings. The very issue as to
42 whether these rules implicates section 2(b) of the
43 Charter and the applicability of the principles
44 set out in Dagenais and Mentuk and other cases are
45 all before the court, and so it is our position
46 that until that -- the supreme court renders its
47 decision, there should be no broadcasting of these
25
Submissions by Ms. Strachan
Reply by Mr. Henry
1 proceedings.
2 THE COURT: If the court's practice direction was fully
3 complied with, in other words, your consent was
4 present, we don't have to -- we could proceed
5 under the existing practice direction, could we
6 not?
7 MS. STRACHAN: We --
8 THE COURT: I mean you don't consent, but if the -- if
9 everything contemplated by the current practice
10 direction is in place, we could proceed with
11 televising the proceedings out of that practice
12 direction, couldn't we?
13 MS. STRACHAN: We could -- yes, we could proceed,
14 though, we share the same concerns regarding
15 witnesses which were pointed out by Mr. Macintosh
16 in his submission. And in addition, I agree with
17 Mr. Macintosh's submissions regarding any sort of
18 staged application.
19 In my submission, the application should be
20 made now by the CBC. We can't -- we don't have
21 the time to argue the law from time to time in
22 these proceedings regarding individual witnesses.
23 Thank you.
24 THE COURT: Thank you. Mr. Henry.
25 MR. HENRY: My Lord, the BC Supreme Court introduced
26 the practice directive to permit television camera
27 access to its trials on the terms that were there.
28 And the net effect of the Attorney General of
29 Canada's position is that we would not be able to
30 do it at all because all-party consent would be
31 required and they're a party, so we'd have to stop
32 right there, which demonstrates the problems with
33 the rules as drafted.
34 The public interest doesn't matter in terms
35 of the case itself, a consideration of the public
36 interest doesn't matter, because any one party,
37 any one witness can stop the public interest from
38 being considered.
39 The AG Canada mentioned the -- began by
40 mentioning the Quebec case that is before the
41 Supreme Court of Canada, and, with the greatest of
42 respect, that case is not relevant to you today.
43 As you noted, the guidelines were not at issue for
44 televising court proceedings. In fact, in Quebec
45 there is a total ban on broadcasting from court
46 proceedings that was not challenged by the media
47 in the case that is before the Supreme Court of
26
Reply by Mr. Henry
1 Canada.
2 What was challenged in the case before the
3 Supreme Court of Canada were two specific things,
4 television camera access to the corridors of the
5 court building in areas that the Chief Justice
6 would designate, the media said even that
7 designation was too much of a restriction; and the
8 second was whether or not media can take existing
9 court audio, official court audio, buy a copy of
10 the audio transcript, and broadcast it, without
11 the issue having even been considered in the
12 context of the case itself. And here we are
13 discussing, within the context of this case,
14 whether video and audio from this proceeding ought
15 to be permitted, which is a different
16 consideration entirely. And with respect to my
17 friends from AG Canada, the whole world shouldn't
18 stop -- the people of British Columbia should not
19 be precluded from seeing these proceedings because
20 the Supreme Court of Canada is considering some of
21 the issues, some of the principles involved in an
22 entirely different context and a challenge to a
23 different proceeding out of a different province
24 -- a different rule out of a different province.
25 My friend Mr. Macintosh said that he was
26 concerned about timing and how much time this
27 issue would take up. He feels that there was --
28 there should be no burden on a witness to justify
29 not having a camera. And our position simply is
30 that we have that debate at another time when it's
31 more focused than it can be now, because we don't
32 have before us a list of the specific witnesses
33 and their specific concerns on this specific
34 issue.
35 So he then says in making what I would like to
36 class as an interim argument, that this issue
37 would take three to four days to resolve when the
38 time comes later, in our submission, to discuss
39 it. And with respect, I think we are talking
40 about, as we will learn, categories of concerns,
41 and we will be able to discuss with counsel
42 introducing those witnesses what their concerns
43 are, and we may well be able to alleviate those
44 concerns. I had some preliminary discussions with
45 some about the kinds of concerns that might exist,
46 for example, would there be a problem in
47 televising the testimony of a witness who is
27
Reply by Mr. Henry
1 behind a screen. They're protected in any case,

2 we'd be talking about their voice, maybe we can
3 discuss that -- before it is discussed in the
4 court we could discuss it amongst counsel and see
5 whether there is a concern or there isn't a
6 concern, and how we would address it. And there
7 may well be ways to address those concerns.
8 There may well be ways to address the issue
9 that was raised by LEAF in terms of whether
10 somebody might slip and let information out in a
11 live proceeding that couldn't be gotten back. We
12 don't anticipate that that would be a problem
13 during submissions, because counsel, if live
14 broadcasting was permitted, would be conscious of
15 that and would not make it -- create a live issue.
16 From our point of view as broadcasters, we
17 wouldn't want to transgress an anonymity order
18 ourselves, so we would try to institute measures
19 that would ensure that that doesn't happen.
20 So the concerns that people have, I believe
21 can be addressed in time. As far as today's
22 proceedings and standing down is concerned, I'm
23 advised by our technical people in the break, that
24 if we started at -- you know, after 4 o'clock, we
25 could be finished installing everything probably
26 by 10:00, and we'd be prepared to do that. I
27 think it then becomes a question of whether the
28 court, if television is permitted, would want the
29 opening submissions to be available to the public
30 generally through that means, and then it would be
31 up to Your Lordship to decide.
32 As far as concerns raised by my friend
33 representing West Coast LEAF, the Pilarinos
34 decision was decided quite some time ago and the
35 law has, I would submit, evolved considerably.
36 There have been many more decisions supporting the
37 Dagenais/Mentuk principles and when it applies and
38 when it doesn't apply, and the supreme court has
39 since said that it applies to all discretionary
40 orders dealing with publication. In the Vancouver
41 Sun case, for example, where Justice Fish
42 indicated that, and that has been supported in
43 subsequent supreme court decisions.
44 My friend mentioned the Ontario -- report to
45 the Attorney General of Ontario on -- through
46 their justice in the media committee. She
47 misstated that that report was designed -- was
28
Reply by Mr. Henry
1 brought in to deal with the issues of cameras in

2 court. It was not. That was one of the issues
3 that they considered, but it was designed to deal
4 with justice and media issues generally.
5 But as far as the conclusion of that
6 proceeding, the conclusion was that cameras should
7 be allowed effectively on a Dagenais/Mentuk test
8 in all proceedings, except for trials where
9 witnesses were involved. And the conclusion there
10 was that the existing rules should govern, which
11 in Ontario is a consent rule. Where the witnesses
12 consent, there can be television coverage. So
13 we're effectively back to the practice direction.
14 I believe that addresses the concerns that
15 were raised by my friends. I would just say this:
16 In terms of the importance of having access to
17 witness testimony, the court has recognized, the
18 Supreme Court of Canada has recognized the
19 importance of seeing witnesses. In the case of
20 R. v. KGB, they've recognized that the trial judge
21 has an tremendous advantage over an appellant
22 court in assessing witness demeanour and
23 appreciating what a witness has to say. And in
24 using the principles that apply there, I would
25 submit that it is just as important for the public
26 to be able to see what the trial judge sees, what
27 the nuances are, what the -- where the pauses are,
28 where the emphasis is, what the witness is
29 actually trying to convey, how believable the
30 witness is on a particular point. Converting what
31 a witness says to a mere transcript and inevitably
32 headlines, I would argue, as an advocate for
33 electronic access, has a tendency to distort
34 potentially what message the witness is trying to
35 convey. So there are very real benefits to the
36 public in seeing what the witness is saying, which
37 is why we believe it's important for the facts in
38 this case not to be treated as peripheral
39 information but to be treated as important
40 information for the public to have access to it if
41 we can accommodate it, which is why we would like
42 to have some brief time in the future to address
43 the specific issues that relate to those
44 particular witnesses.
45 Those are my submissions. Thank you, My Lord.
46 THE COURT: Thank you. Okay. Well, what we'll do is
47 take the luncheon adjournment early and that will
29
Ruling
Opening statement by Mr. Jones
1 give me a chance to give some consideration to

2 what I've heard. Thank you.
3 THE CLERK: Order in court. Court is adjourned till
4 2:00 p.m.
5
6 (NOON RECESS)
7
8 (RULING)
9
10 MR. HENRY: There were other aspects to the
11 application, My Lord.
12 THE COURT: Okay. With respect to access to exhibits,
13 you will have the same right as has been extended
14 already to date to other journalists covering
15 these proceedings. And I understand that the
16 parties have actually co-operated privately with
17 the journalists in question, and I would assume
18 that will continue, and if there are any problems
19 in that regard, those issues can be spoken to.
20 MR. HENRY: And the issue of interviewing participants
21 within the court building outside --
22 THE COURT: I did not give any further thought to that.
23 I will give further thought to that aspect of the
24 application. I considered your application to be
25 sort of almost all or nothing, but I will give
26 specific consideration to whether something can be
27 established in the hallway, as you suggested,
28 outside of this courtroom.
29 MR. HENRY: Thank you, My Lord.
30 THE COURT: Thank you for your submissions. Mr. Jones.
31 MR. JONES: My Lord, the Attorney General, as you know,
32 of British Columbia has carriage of these
33 proceedings and by agreement of the parties and
34 participants we will speak first in our opening
35 submissions, and I would propose to proceed in the
36 following way: First, I will introduce the
37 reference by setting out the jurisdiction of this
38 court and reading into the record the reference
39 questions. Second, I will take some time to
40 explain, for the benefit of the court, the
41 participants, and the public, a little of the
42 background of the reference to explain its purpose
43 and how we got here today. Third, I propose to
44 outline the nature of the reference in its
45 procedures and the rules that have developed so
46 that everyone will have a clear idea of what to
47 expect over the next two and a half months or so.
30
1 And then fourth, I will turn to our opening

2 statement, the written opening statement that has
3 already been distributed and filed which will set
4 out and explain the attorney's position on the
5 reference questions. And then finally, I will
6 submit to the court for its reception the
7 attorney's present evidence in the form of filed
8 affidavits for formal reception by the court. And
9 I think it's anticipated by the participants,
10 subject to Your Lordship's direction, that we will
11 each do that in the course of our opening
12 submissions, refer you to our affidavit evidence
13 and ask that it be received.
14 There may be some controversy around some of
15 the reception. My proposal would be that persons
16 who object to the admission of any particular
17 piece of evidence can simply make those objections
18 known at the time that they're presented to the
19 court and then those matters can be set aside for
20 subsequent determination.
21 THE COURT: You know, I see us marking every admitted
22 document, whether it be a single or a consolidated
23 document as an exhibit. Does that sit well with
24 --
25 MR. JONES: I know that was certainly the Attorney
26 General of Canada's strong position that it should
27 be, and we are perhaps less adamant but that
28 certainly --
29 THE COURT: Just so we keep track of what the record
30 consists of?
31 MR. JONES: Right. We have no objection to that. I
32 suspect my submissions, because they add to what
33 is already a fairly lengthy written submissions,
34 some more aspects, I expect to be the better part
35 of a day. In discussing the schedule with my
36 friends from the other parties and interested
37 persons, the subsequent presentations will be
38 briefer and in many cases much briefer than that,
39 and we expected, I think, to take perhaps three
40 days overall, and we now have three and a half
41 this week.
42 There may be some discussion of other
43 preliminary matters that will require us to be
44 pulled sideways from time to time this week.
45 There's ongoing discussions about a consent
46 confidentiality order around some of the source
47 material for the Angela Campbell affidavit, and
31
1 there may be some other preliminary questions that

2 need to be addressed this week, but by and large I
3 think we're determined to do all of our opening
4 statements by Thursday.
5 So I'd stress at the outset, My Lord, that
6 these are introductory remarks. They're not
7 formal arguments or presentation of evidence, and
8 as such I don't propose to take the court to any
9 documents except the written version of the
10 opening statement that the attorney general has
11 filed two weeks ago. Where appropriate I may
12 describe to Your Lordship the positions of the
13 other participants, but for simplicity's sake at
14 this stage I don't think it will be necessarily
15 helpful to make digressions to written submissions
16 of others, or volumes of evidence, or the common
17 book of authorities that has been filed in the
18 court.
19 And perhaps before I go any further, My Lord,
20 I would just introduce you. We have, as I say,
21 five lawyers from the attorney general here today
22 largely for the purpose of these introductions.
23 They're not going to be a constant presence. But
24 immediately to my right, Leah Greathead will be in
25 the court occasionally in the early phases of the
26 trial but will be conducting much of the
27 attorney's case with respect to evidence from
28 Bountiful and FLDS communities in the United
29 States, and she will be assisted in this by
30 Karen Horsman, who's in the middle of the witness
31 box. Freya Zaltz who's also sitting in the
32 gallery is a lawyer who's our trial manager.
33 She's been working with all parties and
34 participants on witness scheduling and technology
35 issues, and she'll also from time to time be
36 joining me at counsel table. And Sarah Bevan who
37 is, I believe, a familiar face by now. I expect
38 Ms. Bevan and I to be the more or less constant
39 presence in the court.
40 The reference questions: The jurisdiction of
41 this court derives from section 1 of the
42 Constitutional Question Act and that act says:
43
44 The lieutenant governor and counsel may refer
45 any matter to the court of appeal or to the
46 supreme court for hearing and consideration,
47 and the court of appeal or the supreme court
32
1 must then hear and consider it.

2
3 Section 2 reads:
4
5 The court of appeal or the supreme court must
6 give the lieutenant governor and counsel its
7 opinion on the matter referred with reasons
8 in the manner of a judgment in the ordinary
9 action.
10
11 So that's the source of authority for the
12 lieutenant governor to refer their questions to
13 the court. And as Your Lordship knows the
14 reference questions for this matter are set out in
15 order in council number 533 dated October 22nd,
16 2009, and there were two questions posed, and they
17 read as follows. First:
18
19 Is section 293 of the Criminal Code of Canada
20 consistent with the Canadian Charter of
21 Rights and Freedoms? If not, in what
22 particular or particulars and to what extent?
23
24 Second:
25
26 What are the necessary elements of the
27 offence in section 293 of the Criminal Code
28 of Canada? Without limiting this question,
29 does section 293 require that the polygamy or
30 conjugal union in question involved a minor
31 or occurred in the context of dependence,
32 exploitation, abuse of authority, a gross
33 imbalance of power, or undue influence?
34
35 Those are the questions, My Lord, and those are
36 set out for convenience at page 3 of our written
37 argument submitted to the court.
38 Also at page 3 is reproduced section 293
39 itself, and I will read section 293, it says:
40
41 Everyone who (a) practises or enters into or
42 in any manner agrees or consents to practice
43 or enter into (i) any form of polygamy, or
44 (ii) any kind of conjugal union with more
45 than one person at the same time, whether or
46 not it is by law recognized as a binding form
47 of marriage, or (b) celebrates, assists, or
33
1 is party to a rite, ceremony, contract, or

2 consent that purports to sanction a
3 relationship mentioned in subparagraph (a)(i)
4 or (ii) is guilty of an indictable offence
5 and liable to imprisonment for a term not
6 exceeding five years.
7
8 The next provision 293(2) reads:
9
10 Wherein an accused is charged with an offence
11 under this section, no averment or proof of
12 the method by which the alleged relationship
13 was entered into, agreed to or consented to
14 is necessary in the indictment or on the
15 trial of the accused, nor is it necessary on
16 the trial to prove that the persons who are
17 alleged to have entered into the relationship
18 had or intended to have sexual intercourse.
19
20 So those are the questions, My Lord, and that is
21 the provision to which the questions refer. I'll
22 now turn to the background of the reference.
23 And at this stage I'm going to stick with what
24 is entirely uncontroversial in summary form.
25 Section 293 of the Criminal Code began as an
26 amendment to an Act respecting offences relating
27 to the law of marriage in 1890. It was enshrined
28 in the Criminal Code in 1892. The offence was
29 then, as now, punishable by up to five years
30 imprisonment.
31 Now, the circumstances of the law's passage
32 in the historical context and most of all its
33 purpose will be the subject of intense discussion
34 and debate in this case, and so I'll say very
35 little about it at this point. I do think it's
36 uncontroversial, however, to say that the law was
37 enacted amid concerns over the practice of
38 polygamy in the western territories of Canada by
39 some First Nations leaders, and more importantly
40 by the recent influx of Mormon immigrants to what
41 is now southern Alberta.
42 Between 1890 and 1937 there are six reported
43 prosecutions for the offence. Most of these cases
44 were attempts to prosecute what we would recognize
45 today as adultery, not polygamy in the sense of
46 having multiple partners simultaneously and
47 openly. The one exception was the Bear's Shin
34
1 Bone case, which was the prosecution of an Indian

2 man who had married two women in the tradition of
3 his Nation. There had never been a prosecution of
4 a Mormon person for polygamy in Canada prior to
5 2009.
6 The law, what is now section 293, was amended
7 when the Criminal Code was consolidated in 1954.
8 The most obvious change at that time was a removal
9 of the passage referring to Mormon plural
10 marriage. Again, I expect the amendment and its
11 import will be a matter of substantial argument in
12 this case, so I'll say no more about it at this
13 point.
14 The polygamy prohibition was one of the laws
15 that fell under scrutiny after the introduction of
16 the Charter of Rights and Freedoms in 1982.
17 By the late 1980s there were concerns being
18 expressed over the polygamous Mormon community of
19 Bountiful near Creston, BC, and Bountiful had been
20 established in 1946 by descendents of the original
21 Mormon settlers in Alberta who had begun to arrive
22 in the 1980s.
23 In the 1980s, the reports and complaints
24 about Bountiful included allegations of sexual
25 exploitation of and trafficking in young girls.
26 Several police investigations ensued, some
27 resulting in charges for offences not based on the
28 polygamy law, but with no prosecutions at that
29 time under section 293 itself.
30 A comprehensive 1990/91 RCMP investigation of
31 polygamy with respect to two senior members of the
32 Bountiful community -- one's since deceased --
33 resulted in the report to Crown counsel in 1991.
34 This led the attorney general to seek advice on
35 whether the polygamy prohibition could be
36 enforced.
37 One by one a number of counsel from the legal
38 services branch of the Attorney General Ministry
39 and a respected former judge, consulted for his
40 opinion, expressed their views that the law was a
41 violation of religious freedom and one that could
42 not be justified under section 1 of the Charter.
43 This led a representative of the Attorney
44 General's Criminal Justice Branch to publicly
45 announce in 1992 that the law was unconstitutional
46 and could not be enforced.
47 At that time in 1992, British Columbia
35
1 petitioned the federal government to amend the law

2 but the federal government declined taking the
3 position that it was constitutional. The process
4 was repeated under a new attorney general in 2002
5 after another legal opinion and another
6 investigation. The legal opinion this time was
7 from Chief Justice Allan McEachern and the opinion
8 was again that the law could not withstand Charter
9 scrutiny. Again, the federal government resisted
10 provincial entreaties to redraft the legislation.
11 And the correspondence on these things,
12 My Lord, I don't believe has been before the court
13 formally, but it is as of today with the affidavit
14 of John Nelson that has been filed in the last few
15 days in response to questions posed by my friend
16 the Amicus.
17 There was another investigation of Bountiful
18 in 2005/2006, with respect to allegations of
19 sexual exploitation and polygamy. The charges
20 were reviewed again this time by four senior Crown
21 counsel and the decision again was made not to
22 press charges.
23 In 2007, Attorney General Oppal caused the
24 question of polygamy prosecutions to be referred
25 to a special prosecutor, Mr. Richard Peck, QC.
26 Mr. Peck recommended that charges not be laid and
27 that the question of the constitutionality of
28 section 293 should be referred to the court of
29 appeal. Mr. Peck opined that the law was in fact
30 constitutional but that the challenge should in
31 fairness play out first in a reference case rather
32 than in a prosecution. Mr. Peck's views were
33 confirmed the following year by Leonard Doust, QC,
34 another senior independent lawyer who had been
35 consulted by the attorney for his opinion.
36 Subsequently, the attorney general caused to
37 be appointed another special prosecutor
38 Mr. Terry Robertson, QC. Mr. Robertson concluded
39 that charges were warranted and commenced a
40 prosecution under section 293 against the two
41 competing bishops of the Bountiful community,
42 Winston Blackmore and James Oler. It was alleged
43 that the two had religiously married a succession
44 of women and girls including a number of teenagers
45 between 15 and 17 years old. In September of 2009
46 Justice Stromberg-Stein of this court found that
47 Mr. Robertson's appointment as special prosecutor
36
1 was unlawful and that Mr. Peck's decision not to

2 prosecute was final under the Crown Counsel Act
3 and the prosecution was quashed.
4 The attorney general did not appeal
5 Justice Stromberg-Stein's decision. Instead the
6 government decided to refer the question of
7 constitutionality to this court pursuant to the
8 Constitutional Question Act. So exactly one month
9 later after Stromberg-Stein J's decision on
10 October 22nd, 2009, the ordering counsel referring
11 this matter to the court was entered and filed as
12 a requisition.
13 Which brings me to the nature of our present
14 proceedings, My Lord, and we know that as far as
15 anyone can determine, there has never been a
16 reference to the trial court in this province or
17 indeed anywhere else in Canada. We are therefore
18 embarked on a process without precedent under the
19 court's guidance. In some ways this proceeding
20 resembles an ordinary trial and other ways it
21 resembles an inquisitorial proceeding as might be
22 more familiar in civil law countries, and yet
23 other ways it resembles a public inquiry with
24 which most Canadians are now familiar, but in
25 many, if not, most respects this is a sui generis
26 proceeding.
27 A reference proceeding, as Your Lordship has
28 found, is not a traditional case. There are no
29 rights actually at issue. Instead it's a
30 mechanism by which the Government of British
31 Columbia can seek the court's advisory opinion.
32 In the case of a trial court reference, there
33 is an opportunity not available at the court of
34 appeal, for the court to hear a substantial amount
35 of evidence. The Attorney General of British
36 Columbia has carriage of this reference, which
37 means among other things that the attorney has a
38 responsibility for putting the questions before
39 the court and ultimately as representative of the
40 Crown, the party seeking the court's opinion, a
41 responsibility for ensuring that the court has the
42 information and arguments necessary to provide a
43 fully informed and definitive opinion to the
44 government, and one that will provide the
45 evidentiary basis and factual determinations to
46 permit the appellate courts to play the
47 appropriate role, if and when they are called upon
37
1 to do so.
2 There have been a number of preliminary
3 decisions shaping the hearing that now commences,
4 and I'll just briefly recap them.
5 On the same day that the reference was filed
6 the Federal Justice Minister announced that Canada
7 would participate in the reference as a full party
8 as they may do under the Constitutional Question
9 Act. That participation and their full party
10 status was later confirmed by Your Lordship.
11 Also, very early on in the process one of
12 Your Lordship's first decisions was to appoint
13 Mr. George Macintosh, QC, as the reference Amicus.
14 Mr. Macintosh's role is to assist the court by
15 fully articulating positions opposed to the
16 attorneys general. This appointment introduces an
17 adversarial aspect into the process and we say
18 rightly so. Our common experience indicates that
19 it's through the exploration of opposing arguments
20 that we can achieve the fullest adjudication of
21 complex questions.
22 And so those are the three parties, to use the
23 capital P term to this reference, My Lord. That's
24 the Attorney General of British Columbia having
25 carriage of the reference, the Attorney General of
26 Canada appearing as of right, and the Amicus,
27 Mr. Macintosh and his team appointed by the court.
28 But this proceeding is of course not limited
29 to the principal parties. Early in the process
30 the court established a mechanism for notifying
31 potential participants including the former
32 accused Messrs. Blackmore and Oler, as well as
33 other individuals and groups who are known to have
34 an interest in the proceeding. Late last year
35 over 100 invitations were delivered individually
36 and a more general invitation was posted on the
37 attorney general's website, and as a result of
38 this process there are roughly a dozen parties or
39 participants before you aside from the three
40 principal capital P parties, if I can call them
41 that. I won't introduce them now, of course,
42 because each of them will be introducing
43 themselves and making an opening statement of
44 their own.
45 Mr. Blackmore, as Your Lordship knows, decided
46 that he would not take part in these proceedings.
47 Mr. Oler as bishop and representative of the
38
1 Fundamentalist Church of Jesus Christ of Latter

2 Day Saints, and for apparent reasons we're -- that
3 will be frequently abbreviated to FLDS, the
4 Fundamentalist Church of Jesus Christ of Latter
5 Day Saints, FLDS. Mr. Oler and the church decided
6 that they would fully participate, and counsel,
7 Mr. Wickett, as you know, has been diligent in
8 working with the Amicus and with us to ensure the
9 appropriate facts are before the court. And as a
10 general observation, I would say that it is
11 through the co-operation of all the parties in the
12 counsel and court that we've been able to get this
13 matter to hearing as quickly and efficiently as we
14 have.
15 Also early on, Your Lordship directed all of
16 the evidence in the proceedings would be submitted
17 first by affidavit with the expectation that some
18 of the witnesses who provided evidence would be
19 called to testify or to be cross-examined and some
20 would not. So far the various participants have
21 put before you dozens of affidavits and through
22 what we will be referring as the Brandeis Briefs,
23 literally hundreds of published works mostly
24 academic articles but also a wealth of what's
25 called social science evidence or legislative fact
26 evidence. These could take the form of reports,
27 opinion polls, United Nations published data, that
28 sort of thing.
29 Each party will be submitting its evidence
30 during the opening statement for formal reception
31 by the court. There will be, of course, some
32 unusual aspects to the evidence in this case. In
33 order that Your Lordship has the most possible
34 relevant information before you, some of the
35 witnesses have been granted the right to
36 participate anonymously and some other protections
37 are in place to permit persons to testify without
38 having to identify others who are participating in
39 what might be determined to be criminally
40 polygamist relationships.
41 There will no doubt be further controversy,
42 hopefully not much, around the confidentiality and
43 privacy interests of the various witnesses. One
44 of the unique aspects of this proceeding and an
45 order or direction that Your Lordship made early
46 on was that no witnesses would be compellable, but
47 that any witness that put themselves forward
39
1 through an affidavit would be subject to

2 cross-examination, if necessary. And there may be
3 outstanding issues that we have to deal with as
4 time goes on, but I'm confident those can be
5 resolved to the satisfaction of the participants
6 and the court.
7 Another unusual aspect of this proceeding will
8 be that the evidence will be presented without
9 regard to a formal sequence; that is, instead of
10 one party presenting its entire evidence followed
11 by the next party and so on, we decided to
12 schedule witnesses according to the most efficient
13 schedule and plan in whatever order works best.
14 Almost all of the witnesses in the case are from
15 outside Vancouver, many are from outside Canada,
16 and some, especially the experts, have very
17 demanding schedules and very limited availability,
18 so I've handed up to Your Lordship earlier the
19 tentative schedule for at least the expert
20 witnesses, and I'm pleased to say that counsel
21 have worked very closely to develop what promises
22 to be an efficient use of the court days
23 available.
24 In some cases, as I say, witnesses will
25 testify before you, in other cases only their
26 written statements will be in evidence, and of
27 course there's also video exhibits as well that
28 will be in evidence.
29 When the witnesses do testify, their evidence
30 in chief will be limited to that information which
31 is contained in their affidavit. Some may be
32 cross-examined by other counsel, and some might
33 not. And, as I say, the attorney has several
34 affidavits that consist basically of video
35 interviews and those interviews may be played into
36 court.
37 We scheduled the witnesses with the hope and
38 the intention that the expert evidence will
39 proceed first, and this will be followed by the
40 evidence of personal witnesses, most of whom have
41 experienced polygamy in the fundamentalist Mormon
42 communities of Bountiful and its American
43 counterparts in Utah, Texas, and Arizona.
44 The ambition to have completely discrete
45 phases for experts and lay witnesses looks as if
46 it will be frustrated by the simple reality of
47 people's schedules, but we are optimistic that
40
1 they will be concentrated with the experts at the

2 beginning of the hearing and the lay witnesses
3 towards the end.
4 Before I turn to the question of the attorney
5 general's submissions on the substance of the
6 constitutional questions, I should say one thing
7 further. This proceeding does have many of the
8 trappings of an adversarial process. The attorney
9 general will be advocating a certain view on the
10 outcome, but in the end our objective and that of
11 the other participants is the same: to get you all
12 of the necessary information to make the decisions
13 you need to make.
14 As the party initiating the reference and with
15 carriage of, the Attorney General of British
16 Columbia recognizes that he has a greater role
17 than simply as an advocate for a position, and if
18 at any point in these proceedings Your Lordship
19 becomes concerned that he lacks any information,
20 any witness, any document, the attorney general
21 will do whatever is in his power to provide
22 necessary information so that the court can
23 provide a full and meaningful opinion to the
24 government.
25 My Lord, I'll turn to my opening statement now
26 with a few introductory remarks regarding the
27 attorney general's position.
28 You are being asked to settle a question that
29 for decades has been in vigorous dispute, whether
30 Canada's polygamy law conforms to the Charter of
31 Rights and Freedoms. As you've heard, some
32 prominent practitioners and legal academics have
33 disagreed sharply on this question. Legally this
34 case is difficult. No one could argue otherwise.
35 Procedurally, as I've explained, it's
36 unprecedented.
37 I've already described in a very summary way
38 the events that have led to the reference, how
39 over the last 30 years those events have been
40 driven principally by uncertainty over this single
41 issue, the constitutional validity of section 293
42 of the Criminal Code of Canada.
43 Your Lordship has heard that in 1992 and 2002
44 the attorney announced the view that the law could
45 not withstand a Charter challenge. It was
46 unequivocally the attorney's position that this
47 section was unconstitutional and unenforceable and
41
1 that it should be redrafted in order to make it

2 conform with the Charter.
3 Nevertheless, by 2008, the attorney had
4 received opinions from Mr. Peck and Mr. Doust,
5 that especially in light of developments in
6 Charter jurisprudence the provisions more than
7 likely would withstand a Charter challenge.
8 The prosecution by Mr. Robertson was
9 certainly premised on his similar conclusion as he
10 did conclude that a prosecution had a likelihood
11 of success. Nevertheless, the historic concern
12 and uncertainty remained and this is reflected in
13 the reference questions themselves. It'll be
14 apparent that the second question was drafted in
15 anticipation that the section might not survive
16 unless it were read to require elements, such as
17 an abuse of authority, gross imbalance of power,
18 or other aggravating factors.
19 Yet before you now, the Attorney General of
20 British Columbia will be arguing that the section
21 is constitutionally sound and that in fact resort
22 to redrafting, reading down, or reading in is not
23 necessary.
24 This represents -- and there's no way to
25 minimize this -- a wholesale reversal of the
26 attorney's 1992 position. And the court may
27 legitimately ask why, why has this come about?
28 There's no doubt that one reason is the
29 evolution of Charter jurisprudence, and in
30 particular the realization that the Charter is a
31 document that does more than ensure the rights of
32 citizens against the state, but rather it's a
33 document that can contribute to the balancing of
34 important competing rights of various groups in
35 the equation; that's one reason.
36 Far more importantly is the -- in this
37 analysis is the evolution of the attorney's
38 understanding of the harms associated with
39 polygamy.
40 In 1992 and 2002, the opinions of and to the
41 attorney general and the attorney's resulting
42 public position expressed by the Criminal Justice
43 Branch was premised on the idea that polygamy's
44 harms could only be judged with respect to its
45 effects on polygamous families themselves.
46 Everyone knew that there were polygamous families
47 in communities that seemed to lack the hallmarks
42
1 of consent and equality that we had by then come

2 to expect in society.
3 The Amicus puts it most simply when he refers
4 to good polygamy and bad polygamy, but in this
5 same period it was also realized that criminal law
6 should not intrude into the most private spheres
7 of human behaviour except to address harm. As
8 long as it was possible to have a polygamist
9 family that was not harmed by virtue of the
10 polygamy itself, then the reasoning went it should
11 not constitutionally be criminalized. That was
12 the premise of the attorney's position then and
13 it's what I might call the civil libertarian view
14 expressed by the Amicus and the FLDS, by the
15 Canadian Polyamory Advocacy Association, and also
16 by the BC Civil Liberties Association and West
17 Coast LEAF, who, in speaking of the latter two,
18 they are nominally on opposite sides of the
19 reference, but they actually have somewhat similar
20 positions that it is legitimate perhaps to craft a
21 law that applies only where polygamous marriage
22 lacks consent or is otherwise abusive per se. The
23 difference between LEAF and the BCCLA here is that
24 LEAF believes that section 293 does in fact
25 contain this restriction and the BCCLA believes
26 that it does not.
27 And, as I say, My Lord, the civil libertarian
28 position was once the attorney general's view
29 also. It is not a position that the attorney
30 disparages or lightly dismisses. Non-intervention
31 may have been a good starting position for this
32 analysis, may remain a good starting position for
33 this analysis, particularly where intimate and
34 personal decisions cross the criminal law.
35 But today the attorney asserts that a complete
36 prohibition on polygamy can be justified, that the
37 civil libertarian position can no longer be
38 sustained. The attorney says that today we have a
39 much fuller appreciation of the social harms of
40 polygamy. Its impacts on women's equality, on the
41 sexualization of children throughout society, on
42 potentially destabilizing antidemocratic effects
43 that the evidence will show it inevitably brings.
44 These effects, we have learned, will occur
45 regardless of whether it is good or bad in any
46 particular relationship.
47 So today the attorney's position is that the
43
1 prohibition in section 293 is wholly

2 constitutional, and in the opening statement I
3 will articulate as fully as I can our position on
4 both the law and the facts we expect to establish.
5 I hope to show the court the reasoning by which
6 the attorney's position on section 293 has over
7 30 years not just evolved but in fact reversed.
8 I'll turn now, My Lord, to the written
9 submissions themselves, and I'll pick it up on
10 page 4. This is where we set out our concise
11 answers to the reference questions.
12 The first reference question, I'll just
13 repeat it:
14
15 Is section 293 of the Criminal Code of Canada
16 consistent with the Charter, if not, in what
17 particular or particulars and to what extent?
18
19 The attorney would answer it this way:
20
21 Yes. Section 293 is consistent with the
22 Canadian Charter of Rights and Freedoms. In
23 particular, the ban does not offend sections
24 2, 7, or 15 of the Charter, or, if it does
25 infringe on those rights and freedoms, it is
26 demonstrably justified as reasonable in a
27 free and democratic society.
28
29 The second question:
30
31 What are the necessary elements of the
32 offence in section 293 of the Criminal Code?
33 Without limiting this question, does section
34 293 require that the polygamy or conjugal
35 union in question involved a minor, or
36 occurred in the context of dependence,
37 exploitation, abuse of authority, a gross
38 imbalance of power, or undue influence.
39
40 The attorney's answer:
41
42 Section 293 does not require proof that the
43 polygamy or conjugal union in question
44 involved a minor, or occurred in a context of
45 dependence, exploitation, abuse of authority,
46 a gross imbalance of power, or undue
47 influence. These may, of course, be factors
44
1 in determining an appropriate sentence. A

2 person who knowingly enters into or continues
3 a criminally polygamist relationship
4 (defined, as we define it, as formal or
5 informal polygamy), or agrees or consents to
6 do so, or who assists certain processes
7 purporting to sanction such a relationship,
8 is guilty of the offence.
9
10 We say:
11
12 In the alternative, if the ban described
13 above is not consistent with the Charter,
14 then section 293 may and, we would even
15 argue, must be read and construed so as to
16 apply when the polygamy or conjugal union in
17 question does involve a minor or did occur in
18 the context of dependence, exploitation,
19 abuse of authority, a gross imbalance of
20 power, or undue influence.
21
22 Our next heading is the "Central Issues,"
23 My Lord, and we say three: Harm, Purpose, and
24 Interpretation. Every question before you comes
25 down to those three matters and I'll explain how.
26 I'm picking up at paragraph 4. The
27 Challengers, saying that section 293 is
28 unconstitutional, urge the court to make Canada
29 the only Western nation to decriminalize polygamy.
30 The Challengers urge the court to make Canada the
31 only Western nation to decriminalize polygamy.
32 The Amicus's argument is the most fully
33 articulated and it comes down to this: Section
34 293 is based on presumed stereotypical views of
35 polygamy as barbarous. It is an overbroad and
36 clumsy law founded solely on puritanical Christian
37 prejudices that were at least in origin punitive,
38 racist, and imperialist, and a law in their view
39 that remains demeaning to the practitioners of
40 polygamy. The Amicus lists a number of harms or
41 hardships that he says are associated with
42 criminalization including offending the dignity of
43 women, however none of the Challengers
44 acknowledges that there are any harms caused by
45 polygamy itself.
46 That is the one question, in our submission,
47 that overwhelms all others in this reference, and
45
1 it's very simply put: Is polygamy harmful? If it

2 does not cause harm, then its prohibition is not
3 justified and the Challengers must prevail. If
4 there is no harm from --
5 THE COURT: Sorry, that's just the section 1 argument,
6 isn't it?
7 MR. JONES: I'm sorry, which? That if it doesn't cause
8 harm?
9 THE COURT: Right.
10 MR. JONES: Well --
11 THE COURT: You'd only say that if you're under
12 section 1, wouldn't you?
13 MR. JONES: Well, setting it out as a philosophical
14 position, the Attorney General of British Columbia
15 has no interest in enforcing a law that is simply
16 enacted for the purposes of enforcing puritanical
17 Christian values.
18 The question of harm, and I'll explain how,
19 permeates elements of section 2, section 7,
20 section 15, and section 1, but overall, if this --
21 if Your Lordship finds that there is no harm from
22 polygamy per se, as opposed -- not just harm
23 associated with polygamy, not just harm that
24 occurs in polygamist -- some polygamist
25 relationships and maybe not with others, if you
26 don't accept that there is harm associated with
27 polygamy per se, then by whatever route, the ban
28 isn't justified, and it should be -- it should be
29 struck down.
30 THE COURT: Okay. Your answer to the first question
31 is, section 293 is consistent with the Canadian
32 Charter.
33 MR. JONES: Yes.
34 THE COURT: In particular the ban does not offend
35 section 2, 7, 15 of the Charter?
36 MR. JONES: Yes.
37 THE COURT: Stop there. If I find there's no harm --
38 MR. JONES: Right.
39 THE COURT: -- I should not -- I should strike down the
40 section under that first part of your answer?
41 MR. JONES: Yes.
42 THE COURT: Okay. So the harm is relevant not just to
43 the section 1 argument, it's relevant to whether
44 there's indeed a breach?
45 MR. JONES: There is, yes. Yes. And we go on to
46 explain how.
47 THE COURT: Okay.
46
1 MR. JONES: In the next paragraphs, paragraph 7.

2 THE COURT: Oh, yes, I see.
3 MR. JONES: Harm is relevant to the point of asking
4 whether there is any Charter breach at all because
5 an activity that harms the fundamental rights of
6 others may not fall within section 2's religious
7 protections at all. And when weighing
8 arbitrariness, overbreadth, or gross
9 disproportionality in a section 7 analysis, the
10 court will ask: How much harmful behaviour is
11 captured by the law? How much harmless behaviour
12 is caught?
13 We say at paragraph 8, the types of harms are
14 also important. The attorney general asserts that
15 vulnerable groups are protected by section 293
16 including women and girls, as such section 28 of
17 the Charter must weigh in that equation. Section
18 28 is not a very well-litigated provision but it
19 provides -- and that's at our footnote 6, it says:
20
21 Notwithstanding anything in this Charter, the
22 rights and freedoms referred to in it are
23 guaranteed equally to male and female
24 persons.
25
26 So that's in addition to the protections for women
27 under section 15. This is an additional level of
28 protection that overrides the other sections and
29 we say it's relevant to your analysis.
30 We say under section 28, no other provision of
31 the Charter including section 15 can be used to
32 advance a right where doing so discriminates
33 against women. And of course, this was
34 Your Lordship's point, if there is a breach found,
35 harm is relevant to the section 1 analysis under
36 Oakes. That is to say if there is harm or rather
37 at least the reasoned apprehension of harm, then
38 there is a pressing and substantial concern under
39 the first branch of Oakes test. If the harm can
40 be causally linked to polygamy, then there is a
41 rational connection between the activity and its
42 prohibition. And if there is sufficient harm
43 shown from polygamy, then the salutary effects of
44 the law will be seen to outweigh the deleterious
45 and proportionality is made out. And what remains
46 then is minimal impairment, can the harm of
47 polygamy be addressed through less intrusive means
47
1 without prohibition, without criminal prohibition,

2 and if so, how?
3 The main task facing this court will be
4 assessing and weighing evidence respecting harm.
5 The harm of polygamy versus the harm of
6 prohibition.
7 But even if polygamy is proven harmful and
8 therefore even if section 293 is on balance
9 beneficial, the court still must determine the
10 provision's true objective. Because if it was
11 enacted predominantly for a religious or
12 discriminatory purpose, as the Amicus asserts,
13 then again it is bad and should be struck down.
14 This is what I might refer to, My Lord, as the
15 Amicus's "silver bullet argument," because no
16 matter what the analysis would be, if this law
17 were enacted today, on the cases, and in
18 particular on Big M Drug Mart, if the Amicus
19 succeeds in showing that it was originally enacted
20 for an improper purpose, for a discriminatory
21 purpose, or for the purpose of infringing
22 religious freedom in the sense of Big M, which is
23 to say for the purpose of dictating conformity
24 with religious observations of the mainstream, I
25 think is the way my friend puts it, mainstream
26 Christians, if that's what Your Lordship accepts
27 on the facts from 1890, then on Big M Drug Mart
28 it's open to Your Lordship to strike this law down
29 without consideration of all the other factors.
30 So that's a very important consideration and
31 that's why we put it first. Purpose, then harm.
32 Then we turn to interpretation, and this is my
33 paragraph 12. If the court, having assessed the
34 harms and approved the purpose concludes that some
35 criminal prohibition on polygamy is justified,
36 then it must ask the further question, is this the
37 right law? Is it tailored with sufficient care?
38 Is it minimally impairing? Is it overbroad,
39 arbitrary, disproportionate? These are all
40 different ways of asking the same question in a
41 particular context, and the context is this: How
42 much deference is due to parliament once the harms
43 of polygamy are established?
44 And in Thomson Newspapers Justice Bastarache
45 held for the majority that when weighing the
46 deference that should be accorded to parliament,
47 the court could consider:
48
1
2 ... the vulnerability of the group which the
3 legislature seeks to protect, that group's
4 own subjective fears and apprehension of
5 harm, and the inability to measure
6 scientifically a particular harm in a
7 question, or the efficaciousness of a remedy.
8
9 There are of course other considerations at play
10 in weighing the implications of declaring section
11 293 valid.
12 And I think you'll hear from my friends from
13 Canada how doing so might affect the laws of
14 marriage, divorce, and immigration. It would also
15 of course have consequences, they will tell you,
16 for Canada's international obligations, by which
17 this country is committed to promoting and
18 supporting the international consensus, and the
19 international consensus is away from polygamist
20 practises. It's turning its back on polygamy.
21 But perhaps most significantly, the court in
22 striking down the law would be tampering with a
23 fundamental pillar of the Canadian, indeed the
24 Western democratic, way of life. We accept that
25 it is not enough in defending the law to simply
26 say that it is deeply entrenched in our culture
27 and our sense of public and private obligations.
28 Those are rhetorical concerns that in the past
29 have led to governments supporting laws well
30 beyond the point where they should have.
31 But the fact that a rule, a law, is deeply
32 entrenched in our culture and our sense of public
33 and private obligations, neither is that
34 irrelevant, and courts have recognized a
35 particular deference due in that narrow class of
36 cases dealing with matters of fundamental moral
37 conduct. Age of sexual consent in marriage,
38 incest and consanguinity laws are examples of
39 issues that in the words of the Supreme Court of
40 Canada in Hess and Nguyen they go to the heart of
41 society's code of sexual morality and are properly
42 left for resolution to parliament.
43 So I'm going to turn next to the harms of
44 polygamy, My Lord. Perhaps if you're inclined to
45 take the afternoon break, this would be a good
46 time.
47 THE COURT: Let's go a little longer.
49
1 MR. JONES: Okay. "The Harms of Polygamy" and "The

2 Attorney's Expert Evidence":
3 The attorney's lead expert in this case will
4 be Dr. Joseph Henrich from the University of
5 British Columbia. Dr. Henrich holds the Tier-1
6 Canada Research Chair in Culture and Cognition.
7 As Your Lordship is probably aware, a Tier-1
8 Canada Research Chairs are awarded on the basis
9 that the recipient is -- has an international
10 status as a leader in his or her field.
11 Dr. Henrich is a world-renowned
12 anthropologist, but he also holds tenure in both
13 economics and psychology. We say he is uniquely
14 qualified in an interdisciplinary basis to provide
15 an opinion of the breadth that he does in this
16 case.
17 Dr. Walter Scheidel is the chair of the
18 classics department at Stanford University.
19 Dr. Scheidel traces the origins of what he calls
20 socially imposed universal monogamy, SIUM, from
21 its roots in the early democracies of ancient
22 Greece through to modern times. Dr. Scheidel's
23 work, like that of Dr. Henrich and Dr. Witte, a
24 witness of the federal attorney general,
25 demonstrates that the imposition of monogamy has
26 been inextricably entwined with the growth and
27 success of the Western democratic way of life and
28 the development of a rights-based culture to the
29 point where some theorists suggests that one would
30 not be possible without the other.
31 And we quote Harvard's evolutionary
32 psychologist, Stephen Pinker, who's observed that
33 in recent centuries egalitarianism and monogamy go
34 together as naturally as despotism and polygyny.
35 All of the experts who discuss the historical
36 or anthropological context in this case note that
37 monogamy is the exception, monogamy is the recent
38 phenomena. That polygyny is at least a naturally
39 evolved available human behaviour that has been
40 virtually universally present in all societies
41 throughout all history. So the question is -- the
42 question of what are the implications for this
43 stark divergence from this historical norm, what
44 have they been for Western society, and what would
45 be the consequences of pulling on that thread, of
46 pushing on that pillar?
47 So the Amicus's narrative of the prevalence of
50
1 polygamy historically and cross culturally, at

2 paragraph 6 to 16 of his opening statement --
3 that's his first opening statement, is correct but
4 we say unhelpful. It's true that the overwhelming
5 majority of the hundreds of cultures documented in
6 the anthropological record were polygamists, that
7 is to say were partially polygynous with some men
8 having multiple wives and most men having none.
9 The narrative is used by the Amicus to
10 buttress his ensuing theme that in the face of
11 this prevalence section 293 must be viewed as
12 simply an expression of anachronistic Christian
13 prejudice.
14 We say this entirely misses the point that the
15 valuing of women's equality in society is as
16 recent and localized a phenomenon as the practice
17 of polygyny has been longstanding and widespread.
18 Dr. Henrich's work meticulously documents what
19 might be apparent to anyone upon reflection. In a
20 society with equal numbers of men and women,
21 polygamy creates two obvious types of pressure:
22 First, the need to recruit more women into the
23 marriage market, as both polygamists and
24 monogamous wives, drives down into adolescence the
25 age at which girls are targeted for marriage and
26 increases age disparity between husbands and
27 wives. And a second corresponding pressure is
28 created to prevent some men from acquiring wives.
29 If this cannot be accomplished, as it has been
30 through history through expulsion, warfare, or
31 other means, society is faced with a gender
32 imbalance that becomes harmful in itself. This is
33 confirmed by recent trends in India and China
34 where various forms of gender selection have led
35 to societies with more young men than young women.
36 Reliable data from those countries shows that even
37 a relatively small excess in the proportion of men
38 leads to striking increases in criminality and
39 other social problems, to the tune of for every .1
40 increase in the gender balance, there's a
41 corresponding 3 percent increase in crime. A .9
42 percent increase in one Chinese province, I think
43 has been -- increased crime 27 percent in that
44 province. And causality, as Dr. Henrich will
45 explain, is -- can be confidently found because
46 the different provinces, adjacent provinces in
47 China adopted the one child policy at different
51
1 times, and you see then 16 years later the results

2 of that -- those same times. So the social
3 scientists rarely can predict -- or can find
4 causation in correlations but this is one case
5 where they say confidently that they can.
6 So the competition in polygynous society will
7 also, in this theory, increase men's tendencies to
8 control the reproductive capacity of women leading
9 to rigid patriarchal social systems. Similarly,
10 the need to provide an ever-increasing supply of
11 willing younger girls will require mechanisms of
12 indoctrination and normalization.
13 If current scientific understanding of mating
14 and marriage behaviour is correct, we would expect
15 a society's degree of polygyny to correlate with
16 the youth of girls at first marriage and with the
17 age disparity between husbands and brides in both
18 polygamist and monogamous marriages. It does. We
19 would expect a degree of polygamy to correlate
20 with social instability and crime. It does. We
21 would expect it to negatively correlate with
22 accepted measures of women's equality. Again,
23 cross-culturally it does. The only assumption
24 necessarily underlining the demonstrable social
25 harms of polygamy is --
26 THE COURT: This will be subject to some of the expert
27 evidence I'm hearing?
28 MR. JONES: Absolutely, My Lord, yeah. The only
29 assumption necessarily underlining the
30 demonstrable harms of polygamy is that it will
31 manifest more often than not as polygyny, rather
32 than polyandry. Polygyny of course is one man
33 with more than one female partner. Polyandry is
34 the opposite, one woman with more than one male
35 partner.
36 So in order for these mathematical effects to
37 kick in, you have to be working on the assumption
38 that polygyny will occur more than polyandry,
39 otherwise the two would simply balance themselves
40 out. And of course it does, it manifests
41 overwhelmingly as polygyny as opposed to
42 polyandry.
43 All of the religious, the established
44 religious forms of polygamy are polygynous.
45 Polyandry remains vanishingly rare and usually a
46 temporary adaptation to environmental stresses or
47 opportunities. Evolutionary psychology, which is
52
1 one of Dr. Henrich's principal specializations,

2 provides the obvious answer as to why the genetic
3 prospects of a man are increased by multiple
4 partners in a way that those of a woman are simply
5 not. Our behavioural tendencies have evolved
6 accordingly, thus throughout the anthropological
7 record partial polygyny is the rule, universally
8 monogamy is the exception, and polyandry the
9 statistical aberration.
10 So when we're talking about a polygamist
11 society versus a monogamous society, it's all a
12 question of degrees. There's never been a
13 society, at least not that anthropologists are
14 aware of, that is purely polygamist where every
15 man has more than one wife. Arguably, there's
16 never been one that's been entirely monogamous
17 either. The question is degree of polygamy in
18 society and what correlates with a higher degree
19 versus a lower degree of polygamy. But it focuses
20 our attention on a harm from a polygamist society,
21 a harm from a society with increased amounts of
22 polygyny as opposed to the harms of a particular
23 polygamist relationship that may or may not be
24 manifest in any particular relationship.
25 Now, the question of course is whether we can
26 take the leap from the experiences of foreign
27 societies. Most of the work that's been done
28 showing those correlations and causations is
29 cross-cultural international. Can we take this
30 leap and suppose that such harms might be visited
31 here if polygamy was more widespread. Now, we say
32 that we don't need to, of course, because the law
33 requires only that the harm be reasonably
34 apprehended, not that it be proved. Nevertheless,
35 I would venture to say that the level of proof of
36 social harm in this case is almost unprecedented
37 in itself.
38 I noticed Your Lordship glancing at the clock.
39 Is this a good time?
40 THE COURT: Well, you want to finish this section?
41 MR. JONES: Sure.
42 THE COURT: It seems to be fairly short.
43 MR. JONES: Okay. I'll do that.
44 THE COURT: I was glancing at the computer.
45 MR. JONES: Now, the Amicus's own expert,
46 Professor Todd Shackelford, concedes that
47 Professor Henrich has ably summarized various
53
1 negative correlates and apparent consequences

2 associated with polygamist relationships.
3 Professor Shackelford can only offer in response
4 that negative correlates and apparent consequences
5 can be seen in any kind of mating or marriage
6 relationship. He then goes on to describe harms
7 that befall women and children in monogamous
8 marriages.
9 Now, Professor Henrich has read and
10 considered Professor Shackelford's report and who
11 are, I gather, mutually respectful of one another
12 in their fields, and we don't quibble with
13 anything Professor Shackelford says about what can
14 happen in monogamous relationships. But we've got
15 to be careful not to confuse association with
16 correlation. Dr. Henrich's work is all involved
17 with comparing polygamy with monogamy.
18 Dr. Shackelford's work is entirely focused on
19 monogamy, period, and to the extent that there's
20 any comparison, it's between monogamous family
21 units and no family units. So Professor
22 Shackelford may say that you're far more likely to
23 be murdered by a member of your immediate family
24 than by a stranger, but he makes no effort to take
25 the principles underlying that and say how would
26 that reflect in monogamous versus polygamist
27 relationships. So what Dr. Henrich did in reply
28 to Dr. Shackelford is actually take
29 Dr. Shackelford's own work, the principles
30 underlying it, and apply in polygamy versus
31 monogamy. So he takes, for instance, his
32 observation that domestic violence is
33 overwhelmingly more common among non-related
34 cohabitants and that male violence against women
35 becomes worse as the age disparity between
36 husbands and wives increases. And he says well,
37 how would that play out in polygamist households
38 versus monogamous households, so he notes in a
39 polygamist relationship that there's actually a
40 lot more non-related cohabitants. That all these
41 risk -- and there's a lot greater age disparity
42 between husbands and wives, and so all these risk
43 factors that are identified by the Amicus's expert
44 Dr. Shackelford could be expected to be at least
45 as bad, if not, much, much worse in polygamist
46 versus monogamous families. And then Dr. Henrich
47 goes on to confirm these predictions to the extent
54
1 possible with ethnographic observations from North

2 American and other polygamist communities.
3 So we say that you only have to find a
4 reasonable apprehension of harm. And we say that
5 on the evidence that Your Lordship will hear, that
6 will be more than made out. But in this case we
7 have more than simply a reason to apprehension, we
8 have proof from Bountiful and from other
9 fundamentalist Mormon communities.
10 If the attorney's theory of polygamy social
11 harms were correct, we would expect to see in
12 those places a history of child brides and/or the
13 trafficking of girls to satisfy polygamy's
14 increased demand. We would expect some mechanism
15 for dealing with the unmarriageable men, either
16 they will remain as an unstable and anti-social
17 force or they will be absent. And when you look
18 at the numbers that have been provided by the FLDS
19 of their community, the demographics, you are left
20 scratching your chin and saying where did the men
21 go, where did the boys go, and we'll show you
22 those figures.
23 We would expect to see systems of education
24 and indoctrination, formal and informal, marked by
25 demands for rigid obedience to authority. And we
26 say we see all those things at Bountiful, and
27 Your Lordship will through the evidence of
28 Bountiful. Bountiful is polygamy in practice.
29 Just before I close the section, let me just
30 say, the Amicus has put no evidence to directly
31 discount or counter Dr. Henrich's able, as his
32 expert refers to, summary of the harms associated
33 with polygamist family structures versus
34 monogamous ones. What he says in response is that
35 the concern over these harms are a recent
36 creation, that they were not the harms that were
37 contemplated by parliament in 1890. He says:
38
39 The AGBC's concern is one that has been
40 devised for this reference.
41
42 And I just want to deal with that. We'll talk
43 about it more when we come to purpose of the
44 legislation. For now let me say this, clearly and
45 on the record: We not only concede that these
46 harms were not fully understood, that these facts
47 were not available before the reference was
55
1 commenced, we assert that this was so.

2 I have said already that the attorney's
3 position has reversed since 1992 and has evolved
4 even in the last year. It is our appreciation of
5 the social harms identified by Professor Henrich
6 and the numerous academic researchers he cites,
7 that is in part responsible for this. We realize
8 that the civil libertarian position, the idea of
9 good polygamy and bad polygamy is inadequate as a
10 basis for the analysis in much the same way as
11 good marijuana and bad marijuana dichotomy was in
12 the case of R. v. Malmo-Levine in the supreme
13 court, or good incest and bad incest in the
14 R. v. S.M. case to which I'll be referring, and
15 that was the case considering the
16 constitutionality of consensual adult incest.
17 The position, though -- the facts are new, as
18 I say, but it wouldn't be correct to say, as the
19 Amicus does, that the AGBC's concern is one that's
20 been devised for the reference. We don't have a
21 position in search of facts to support it. We
22 have a position that has been reversed on the
23 basis of the facts that we have come to understand
24 and that we will be presenting to the court.
25 But one thing I want to make very clear about
26 the relevance of this, the Amicus's argument, the
27 recency of our concern, rolls two distinct factual
28 questions into one. The first question is whether
29 the Act had in 1890 a legitimate purpose generally
30 stated. We say the purpose here can be simply
31 put, as it was in Butler: the avoidance of
32 individual and social harms associated with
33 polygamy, period. That's all we have to
34 demonstrate with respect to 1890.
35 We have to rebut their assertion that in 1890
36 the purpose was purely the enforcement of
37 religious traditions, but we don't have to prove
38 that in 1890 the government was aware of the
39 increased sexualization of girls, for instance, in
40 polygamist countries around the world. The
41 purpose is examined with reference to 1890 or at
42 least to 1954, and so may, looking back, help us
43 to interpret the provision. What did polygamy
44 mean, for instance, in 1890 is going to be an
45 interesting question. But once the threshold of
46 purpose is passed, every other aspect of the
47 constitutional analysis is based purely and solely
56
1 on the harm as it is understood today, the

2 evidence that is available today, the reasonable
3 apprehension that is present today. Nothing we
4 say could be clearer from the cases.
5 And I'd be moving on to the next section now.
6 THE COURT: Thank you. 15-minute break.
7 THE CLERK: Order in court. Court is adjourned for the
8 afternoon recess.
9
10 (AFTERNOON RECESS)
11
12 THE CLERK: Order in court.
13 THE COURT: Thank you. Mr. Jones.
14 MR. JONES: My Lord. I'm now at my paragraph 26 on
15 page 10, evidence regarding Bountiful and the
16 FLDS. A significant part of the evidence in this
17 case originates from the fundamentalist Mormon
18 communities of Bountiful and its American sister
19 towns, and you'll hear their names. Although
20 fundamentalist Mormonism -- or Mormons appear to
21 number only a thousand in Canada and with only a
22 subset of this population actively practising
23 polygamy, they through the evidence of the FLDS
24 and Amicus, as well historically have presented
25 the most sustained and serious challenge to the
26 polygamy law. The FLDS is an insular socially and
27 geographically isolated group. The practice is
28 polygamy. Its rules and norms are by mainstream
29 Canadian standards inegalitarian and patriarchal.
30 Direct evidence from Bountiful presented by the
31 attorney and also by the Amicus and the FLDS
32 itself, presents, we say, a consistently worrisome
33 narrative of child brides, teen pregnancy, and men
34 or boys who are by accident or by design driven
35 out of the communities.
36 But the vexing question is whether and to
37 what extent we can tease causation from
38 correlation. If these harms once proven were
39 simply coincidence quirks of an isolated singular
40 little religious community, they could provide no
41 support for criminalization of the practice of
42 polygamy across society.
43 But they are not simply coincidence quirks of
44 these communities. The harms documented at
45 Bountiful are the perfectly predictable, indeed
46 the inevitable consequences of a polygamist
47 society. In this sense Bountiful and the greater
57
1 FLDS are important metaphors for polygamy

2 generally. We need to look at Bountiful, not
3 simply because it provides the proof of theory but
4 also because it shows the inadequacy of theory
5 alone in assessing harms. It's one thing to hear
6 an expert witness explain why polygyny tends to
7 drive down the average age of marriage in
8 societies in Africa and Asia; it's another to see
9 it happening in the British Columbia interior.
10 Bountiful gives us a glimpse of polygamy in
11 practice. The court will hear from the
12 Challengers that if there are problems at
13 Bountiful, they are problems arising from the
14 insular rigid patriarchal inegalitarian and
15 isolated community. They will even suggest that
16 criminalization itself causes or at least
17 exacerbates these inclinations. They say we don't
18 need to worry about harmful polygamy taking root
19 elsewhere in Canada because it only arises in this
20 kind of environment and how many Bountifuls can
21 there be? We say this misses the point. We say
22 as a matter of logic, as a matter of science, and
23 as a matter of historical fact, one conclusion
24 clearly emerges: Bountiful did not create
25 polygamy; polygamy created Bountiful.
26 Polygamy in other contexts: Numerically
27 speaking, the threat presented by polygamy does
28 not arise from the spread of fundamentalist
29 Mormonism, but rather in immigrant populations
30 including immigrants from Muslim countries and
31 African cultures where polygamy is either legally
32 or culturally condoned.
33 There is before the court considerable
34 evidence regarding polygamy in Islam and its North
35 American immigrant populations. The basic facts
36 are sufficiently uncontroversial that no witnesses
37 have been called by either side to give direct
38 evidence or to be cross-examined. So you'll be
39 hearing about polygamy in Islam and North American
40 immigrant populations largely in closing
41 submissions when reference to that evidence is
42 made.
43 The evidence, we say, indicates that the
44 problems associated with polygamy persist within
45 those communities too compounded by the harsh
46 social, linguistic and economic barriers faced by
47 immigrant populations. The evidence also suggests
58
1 that polygamy is beginning to take root in

2 Canada's Muslim community, particularly among
3 immigrants, aided by the uncertainty over the
4 status of section 293.
5 Yet the Challengers all urge the court to
6 make Canada the sole Western nation to
7 decriminalize polygamy. We say the reasonably
8 apprehended result would be an influx, perhaps
9 that's an understatement, of polygamist families
10 who are presently barred from the country in
11 addition to the practice's domestic growth.
12 And keep in mind that as the rest of the
13 world turns against polygamy and an increasing
14 number of Muslim countries, for instance, are
15 criminalizing it as opposed to decriminalizing it,
16 Canada, if it were a constitutionally protected
17 practice, would be the only Western destination of
18 choice for people who wish to practise polygamy.
19 The lesson of France, we say, is instructive.
20 That country introduced a family reunification
21 policy permitting immigration by members of
22 polygamist families in order to spur immigration
23 in response to post-war labour shortages. A
24 review of the literature reveals the catastrophic
25 consequences as the numbers of polygamists in
26 France swelled to hundreds of thousands. The
27 research indicated that the situation for
28 polygamist immigrants in France was dire indeed,
29 often worse in fact than in their home countries.
30 The French government reversed direction in 1993
31 but the damage was already done and the harm
32 persists almost two decades later. The French
33 example, we say, suggests that decriminalization
34 of polygamy should be approached with great
35 caution.
36 I turn now, My Lord, to the history and the
37 purpose of section 293. And, as I say, this is a
38 pivotal question before Your Lordship. We say
39 section 293's purpose is to deter and punish
40 behavior that is seen as harmful to women and
41 children of polygamist unions, harmful to others
42 throughout the pressures it creates for the
43 recruitment of girls and the exclusion of boys,
44 denigrating to women's equality generally, and
45 injurious to peace, order, and good government.
46 Section 293 and its precedent provisions have
47 also served a number of secondary purposes, such
59
1 as providing a basis for selective immigration so

2 as to avoid the harms alluded to above, avoiding
3 difficulties associated with succession, divorce,
4 and remarriage, and benefit distribution in
5 non-monogamous unions, and harmonizing with other
6 nations Canada's approach towards polygamy's
7 harms. The crucial question of course is whether
8 the purpose of section 293 is religious. And
9 whether it's religious in the framework of
10 Big M Drug Mart, whether it is enforcing
11 mainstream Christian observance. Is that its
12 primary purpose?
13 The Amicus of course asserts that the law has
14 not only an unconstitutional effect but also an
15 unconstitutional purpose. He suggests that the
16 law emanated from simply religious prejudice
17 further tainted with improper political and even
18 racist ambitions. The Amicus traces the law to
19 American roots and in particular the legislation
20 passed by Congress between 1862 and 1887 which he
21 says, and I quote:
22
23 Sought to demote Mormons from full civic
24 membership to punish them for political
25 treason and race treason.
26
27 The Amicus writes:
28
29 The criminal ban on polygamy was enacted in
30 order to curtail a practice that was deemed
31 to be offensive to a mainstream Christian
32 definition of marriage. It was aimed at
33 defending a Christian view of proper family
34 life and was employed in the state's cultural
35 colonization of aboriginal peoples. The ban
36 was first imposed during a historical period
37 when the imposition of Christian norms and
38 values was deemed appropriate, but such an
39 objective is no longer just and compelling in
40 our free and democratic society.
41
42 The argument, we say, is appealing not least
43 because the original 1890 version of the law did
44 explicitly refer to polygamy in terms of the
45 Mormon practice. There was originally a third
46 section, My Lord, in addition to the ban on
47 polygamy in (1), the ban on conjugal union in (2),
60
1 there was a third explicit ban on what the Mormon

2 refer to as plural marriage, and that was dropped
3 in 1954.
4 Rejecting section 293 as a vestige of
5 Victorian-era puritanism is also tempting, as
6 proof of society's progressive advancement since.
7 And we say this inclination is apparent in the
8 work of the handful of avowedly progressive
9 scholars who have become apologists for polygamy,
10 such as the Amicus's principal expert,
11 Professor Campbell. Nowhere in
12 Professor Campbell's extensive writing on polygamy
13 does she appear to acknowledge that there's any
14 harm inherent in the practice. She appears to
15 take it as given that the law originated from
16 irrational prejudice and should be judged on that
17 basis. We say, as both a matter of history and
18 law, that explanation is incorrect.
19 As a historical question, the evidence will
20 show that the US Congress's ban on polygamy in
21 Utah simply extended a prohibition that already
22 existed in all the United States and other
23 territories. A point emphasized in
24 Professor Marcy Hamilton's reply affidavit to the
25 expert legal opinion of Mr. Turley. And Mr.
26 Turley, Your Lordship may know, is the lawyer for
27 the gentleman on the television show Sister Wives,
28 which -- and who the Amicus has presented as an
29 expert on US law in the area. Where the American
30 laws passage, we say, and content and that of the
31 subsequent Canadian iteration, while these were
32 given an urgency by the particular challenges
33 posed by Mormon polygamy in the 1800s, that's
34 beside the constitutional point.
35 The expert historians in this case,
36 Drs. Scheidel and Witte demonstrate unequivocally
37 that bars against polygamy trace their origins to
38 ancient Greece and Rome. Socially imposed
39 universal monogamy, as Dr. Scheidel call it, has
40 been a common thread of Western societies since.
41 No expert from the Challengers and indeed nothing
42 in their rich literature on the subject has cast
43 doubt on the essentials of this narrative. At
44 times of course monogamy was enforced through
45 ecclesiastical mechanisms. At others it has
46 relied on the secular force of the state. Always
47 it has been based on deep seated cultural norms
61
1 and roles of social conduct, but to fix its origin

2 as an imposition of religious conformity,
3 particularly Christian conformity is to ignore the
4 deeper history of the prohibition.
5 In the 18th century, we say, Blackstone
6 identified polygamy as a capital crime that was
7 included in Britain's anti-bigamy legislation
8 dating from 1604. At the time, Blackstone
9 recognized that the prohibition was inherited not
10 only from Roman law but also from the custom of
11 England's Saxon ancestors. It would appear that
12 although Canada has re-enacted an anti-bigamy law
13 upon confederation that was almost identical to
14 the English, there remained some question whether
15 it applied to the polygamy practice by the
16 incoming Mormons and by Indians and Muslims. An
17 Act respecting offences relating to the law of
18 marriage including what is now section 293 of the
19 Criminal Code was parliament's response.
20 It was also, we say, a mistake in view of the
21 events surrounding the enactment of section 293 to
22 regard the provision simply as an outburst of
23 Christian imperialism directed at the Mormon faith
24 as such. The legislative record simply does not
25 support that the law was targeted at Mormonism in
26 the sense that parliament was motivated by animus
27 toward the Mormon religion or culture at large.
28 While it's clear, as we say, that the impetus for
29 the 1980 legislation was the recent arrival of a
30 avowedly polygamist Mormon settlers in Alberta
31 along with recognition that existing bigamy
32 offence will be inadequate to capture the Mormon
33 form of spiritual marriage, nevertheless the
34 legislature record confirms that the majority of
35 amendments were targeted at polygamy itself
36 whether practised by Indians, Mohammedans, as they
37 were called, or Mormons.
38 There was originally a separate provision that
39 forbade what among the persons commonly called
40 Mormons is known as spiritual or plural marriage
41 but this provision was repealed in 1954.
42 Presumably because it was obvious that Mormon
43 polygyny was already captured by the general
44 prohibition against polygamy or conjugal union
45 with more than one person at the same time.
46 In fact, when the first iteration of the
47 polygamy offence was introduced into the Senate in
62
1 February 1890, the section included a proviso that

2 it would not apply to:
3
4 Any Indian belonging to a tribe or band among
5 whom polygamy is not contrary to law, nor to
6 any person not a subject of Her Majesty and
7 not resident in Canada.
8
9 To this one senator commented:
10
11 I think it is a very dangerous exception to
12 make because it may have the effect of
13 exempting the very class to whom the bill is
14 intended to apply.
15
16 And this prompted the bill's proponent to reply
17 that the exception would be struck out and indeed
18 it was.
19 So this was in the context of the Mormon
20 immigration, and two years before in 1888, a
21 number of leaders of the Mormon immigrants had
22 petitioned the Canadian government to permit
23 polygamy evoking as a precedent the practice of
24 Muslims elsewhere in the empire. They argued --
25 this is from the letter of Mr. Card and his
26 associates:
27
28 The comparatively few who need to seek rest
29 and peace in Canada would not be a drop in
30 the bucket compared with the millions of
31 people who are protected in their faith and
32 practice of plural marriage under the
33 Government of the Great Britain. The Mormons
34 were firmly but politely told that they were
35 welcome to come to Canada but not to practise
36 polygamy here.
37 At the committee stage of the polygamy
38 laws consideration Sir John A. Macdonald
39 recounted the episode and explained the
40 government's position as follows: Mr. Card
41 and some others came to Ottawa, some of them
42 are British subjects by birth, one or two are
43 Canadians by birth, and others were born in
44 the United States, they said they wished to
45 settle in Canada. They were informed what
46 our law was and they were told explicitly and
47 distinctly that we were aware that the great
63
1 cause of the antipathy towards them in the

2 United States was the practice of polygamy.
3 And they must understand that the people of
4 Canada would be as firmly opposed to that
5 practice as the people in the United States
6 were. They said they were aware of that but
7 they wanted shelter from what they considered
8 oppression. They were told, told by myself,
9 that in any case where the practice was
10 proved they would be prosecuted and punished
11 with the utmost rigor of the law. They said
12 they were quite willing to submit to law.
13 They attempted of course to argue their
14 case, and they discussed the doctrines of
15 Mormonism generally with me. I said to them,
16 you must understand that there be no mistake
17 about it, there will be no leniency, there
18 will be no looking over the practice. But as
19 regards to your general belief, that is a
20 matter between yourselves and your
21 conscience.
22 We are glad to have you in this country
23 so long as you obey the laws. We are glad to
24 have respectable people. Her Majesty has a
25 good many subjects who are Mohammedans, and
26 if they came here, we would be obliged to
27 receive them, but whether they are
28 Mohammedans or Mormons, when they come here
29 the must obey the laws of Canada. I told
30 them this and they professed a sincere
31 desire, I have no reason to doubt their
32 sincerity, to submit themselves to the laws
33 of Canada for the sake of the rest and equity
34 that they thought they'd get instead of being
35 surrounded by a turbulent crowd who are
36 repressing them in every way.
37
38 This indicates, in our submission, My Lord,
39 that in 1890, this law was enacted not to get the
40 Mormons, not to keep the Mormons out, not to
41 discriminate against them or hold them up to
42 ridicule; this law was with respect to the
43 practice of polygamy. And in the senate, the
44 leader of the house, Senator John Caldwell Abbott
45 indicated that the new provision was:
46
47 Mainly devoted to the prevention of an evil
64
1 which seems likely to encroach upon us, that

2 of Mormon polygamy and it is devoted largely
3 to provisions against that practice.
4
5 Again, however following this acknowledgment
6 of the impetus of the new provision Senator Abbott
7 clarified that the purpose of the law was a
8 broader reach transcending the Mormon religion and
9 culture. He said:
10
11 Of course this bill is not directed at any
12 particular religion or sect of Mormon more
13 than anybody else, it is directed against
14 polygamists. Insofar as Mormons are
15 polygamists of course it attaches to them.
16
17 THE COURT: Is this from Hansard?
18 MR. JONES: That is, My Lord, from, yes, The Debates of
19 the Senate, April 25th, 1890.
20 THE COURT: You'll want to give some consideration to
21 what the court can do in attaching significance to
22 what's said in debates.
23 MR. JONES: I understand, My Lord. We're certainly not
24 arguing and wouldn't in the face of
25 Your Lordship's recent decision that this is
26 determinative in any way. Simply context.
27 I suppose maybe I'll say this in addition:
28 The burden of demonstrating the religious purpose
29 of this law rests with my friends. It's part of
30 the challenge under 2(A), or 15 if they intend to
31 say that it's discriminatory in purpose. They
32 have a more difficult time of it than they did --
33 than the plaintiff -- or the defendant, I suppose,
34 in Big M Drug Mart, because the law in that case
35 was called the Lord's Day Act and it had very
36 clear ecclesiastical and religious origins that
37 aren't perhaps as apparent on the face as they are
38 here. So I expect my friend will have more need
39 to resort -- to Hansard and other extrinsic
40 evidence of the day than we will. But we say that
41 when you do -- and it's emphasized in the next
42 paragraph that I won't read to you, but when you
43 do have regard to the debates, what becomes
44 apparent is that it was the practice and not the
45 religion that was being targeted.
46 And we say, at 51, that although there's no
47 express reference to women's equality in the
65
1 legislative record, broader consideration of the

2 historical context reveals that concern for the
3 well-being of women and children was in fact a
4 strong component of anti-polygamy sentiment in the
5 late 1800s. Modern historians, including the
6 Amicus's expert witnesses, have identified less
7 palatable mores of the era as having contributed
8 to the condemnation of polygamy, puritanism,
9 Victorian prudishness, racism, a monogamist ideal
10 that was in itself oppressive to women in opposing
11 rigid gender stereotypes. We say this was -- this
12 does not alter, however, that the historical
13 record evidences a core preoccupation with
14 polygamy as oppressive and harmful to women.
15 And we present to the court just as a
16 preliminary indication of this the contemporary
17 cartoon, it's reproduced at page 18 that shows a
18 polygamist Mormon husband holding five numbered
19 wives in chains as slaves as an indication of
20 that, and we also quote extensively from the story
21 of Ann Eliza Young, and I'll just synopsize that.
22 Ms. Young was the estranged wife, one of the many
23 wives of Brigham Young who was by then the prophet
24 of -- prophet and president of LDS, the Church of
25 Jesus Christ of Latter-Day Saints, the Mormons, in
26 the United States. And she left him and went on a
27 speaking tour and was a highly influential figure
28 in the history of the day. The president heard
29 her, members of congress came out to hear her, and
30 we say that was the political context in which the
31 Americans acted, and that was the context that
32 Canadians followed when the Mormon immigrants came
33 to Canada.
34 So I'll just skip ahead to paragraph 55. That
35 was a brief introduction, we say, to the history
36 of the prohibition. We've lingered in this part
37 in a little more detail than elsewhere because the
38 question of legislative purpose is a plainly
39 pivotal factual issue in this case. But we say
40 that if as a matter of law, even if the Amicus
41 were correct and section 293 had been originally
42 framed as partially or even mainly a religious
43 imperative, its constitutionality would be
44 ineffective. And that's because the Amicus
45 doesn't seem to go as far as the -- and probably
46 can't go as far as the rule in Big M, which was to
47 say that if the law mandates upon criminal penalty
66
1 the observance of the government religion, then

2 it's bad. The Amicus can't say that section 293
3 mandates on penalty of law the observance of any
4 Christian religious practice. What they can say
5 is that it prevents a particular practice that is
6 religious in nature, and we say that doesn't get
7 them as far as they'd need to under Big M.
8 So we say at paragraph 56, that it's true that
9 if the law had been enacted with no other purpose
10 than to enforce religious practice, it is bad law.
11 But that principle does not extend to prohibit
12 laws that have otherwise valid purposes simply on
13 the basis that they were earlier or even
14 originally argued or articulated in religious
15 terms. And this comes up of course again and
16 again in the cases but one of the very nicely
17 analogous cases is R. v. M.S., which is this
18 province's court of appeal's decision in a
19 challenge to -- a challenge by consensual adult
20 family members in an incestuous relationship to
21 Canada's incest law.
22 THE COURT: If that's not an inconvenient point, then
23 maybe we can come back to this in the morning. I
24 have a commitment after 4 o'clock.
25 MR. JONES: By all means, My Lord. It's a very
26 convenient time.
27 THE COURT: Anything before we break? Okay.
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Certification
1 THE CLERK: Order in court. Court is adjourned until

2 Tuesday, November 23rd, 2010, at 10 a.m.
3
4 (PROCEEDINGS ADJOURNED TO TUESDAY, NOVEMBER 23,
5 2010, AT 10:00 A.M.)
6
7 I, Marina Hopkins, Official Reporter in
8 the Province of British Columbia, Canada,
9 BCSRA No. 547, do hereby certify:
10 That the proceedings were taken down by
11 me in shorthand at the time and place herein
12 set forth and thereafter transcribed, and the
13 same is a true and correct and complete
14 transcript of said proceedings to the best of
15 my skill and ability.
16 IN WITNESS WHEREOF, I have hereunto
17 subscribed my name and seal this 3rd day of
18 December, 2010.
19
20
21
22 ______________________
23 Marina Hopkins, RCR
24 Official Reporter
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11-22-10 Transcript - Proceedings at Canadian Polygamy Reference Case - Day 1

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11-22-10 Transcript - Proceedings at Canadian Polygamy Reference Case - Day 1

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1

1 November 22, 2010

1 MS. WINTERINGHAM: Chief Justice, Janet Winteringham

1 public we should be able to show, subject to

1 to be in place. That would be the structure of

1 publicly and has -- is known publicly and comes

1 THE COURT: Right. Okay. Now -- and could there be a

1 media offices that are below us and the

1 Paragraph C of our submission, on page 3,

1 an issue on page -- the bottom of page 5,

1 desk that would allow her to indicate that

1 have been available to the press, and indeed many

1 Quite often if we were establishing a general

1 facilitate the court's work and the earlier we can

1 THE COURT: Okay.

1 right, Canada, West Coast LEAF, and the CCRC are

1 testimony should be broadcast without their

1 court was not inclined to entertain the present

1 going forward it's as simple as that. It ought to

1 process would be that the practice direction will

1 This is not a private proceeding, and they're

1 was, first of all, as I understand her reasons,

1 streaming of either evidence or submissions of

1 Ms. Winteringham has adverted to, our concern

1 behind a screen. They're protected in any case,

1 brought in to deal with the issues of cameras in

1 give me a chance to give some consideration to

1 And then fourth, I will turn to our opening

1 there may be some other preliminary questions that

1 must then hear and consider it.

1 is party to a rite, ceremony, contract, or

1 Bone case, which was the prosecution of an Indian

1 petitioned the federal government to amend the law

1 was unlawful and that Mr. Peck's decision not to

1 Fundamentalist Church of Jesus Christ of Latter

1 through an affidavit would be subject to

1 they will be concentrated with the experts at the

1 that it should be redrafted in order to make it

1 of consent and equality that we had by then come

1 prohibition in section 293 is wholly

1 in determining an appropriate sentence. A

1 it's very simply put: Is polygamy harmful? If it

1 MR. JONES: In the next paragraphs, paragraph 7.

1 without prohibition, without criminal prohibition,

1 MR. JONES: Okay. "The Harms of Polygamy" and "The

1 polygamy historically and cross culturally, at

1 times, and you see then 16 years later the results

1 one of Dr. Henrich's principal specializations,

1 negative correlates and apparent consequences

1 possible with ethnographic observations from North

1 commenced, we assert that this was so.

1 on the harm as it is understood today, the

1 FLDS are important metaphors for polygamy

1 that polygamy is beginning to take root in

1 as providing a basis for selective immigration so

1 there was a third explicit ban on what the Mormon

1 and roles of social conduct, but to fix its origin

1 February 1890, the section included a proviso that

1 cause of the antipathy towards them in the

1 which seems likely to encroach upon us, that

1 legislative record, broader consideration of the

1 the observance of the government religion, then

1 THE CLERK: Order in court. Court is adjourned until

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