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1 March 31, 2011 2 Vancouver, B.C. 3 4 (DAY 36) 5 (PROCEEDINGS COMMENCED AT 10:00 A.M.) 6 7 THE CLERK: Order in court. In the Supreme Court of 8 British Columbia at Vancouver this 31st day of 9 March 2011 calling the matter concerning the 10 constitutionality of section 293 of the Criminal 11 Code, My Lord. 12 THE COURT: Good morning Mr. Reimer. 13 MR. REIMER: Good morning, My Lord. Just before I 14 resume submissions we've been having some 15 discussions with respect to scheduling among 16 counsel. There may be a bit of an issue this 17 afternoon. Some of the counsel have flights out 18 of town at the end of the day who are here so 19 depending on how far I progress through my 20 submissions this morning I'm hopeful to get 21 through a good chunk of them we may at some point 22 even ask if they could shorten up the lunch hour 23 if that's a possibility or in other ways try to 24 accommodate counsel who have flights at the end of 25 the day I'm not asking for any sort of decision at 26 this point simply alerting Your Lordship to that 27 possibility. 28 THE COURT: Thank you. 29 MR. REIMER: At the end of the day yesterday we were 30 talking about social science evidence and the role 31 of the court in these types of cases. 32 And one of the key principles or one of the 33 clear principles that has come out of the 34 jurisprudence from the Supreme Court of Canada is 35 that Parliament is entitled to act if there's a 36 reasonable apprehension that a practice poses a 37 risk of harm to some people or groups of people. 38 And the Parliament must be afforded what was 39 described in Butler as a margin of appreciation 40 that formed legitimate objectives based on 41 somewhat inconclusive social science evidence. In 42 other words Parliament does not have to wait for 43 the harms to manifest themselves and do not have 44 to wait for the harms to be scientific proven. 45 The question is there a reasonable apprehension of 46 a risk of harm. 47 And Parliament is entitled to act even in

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1 cases where the social science evidence may be 2 inconclusive or where there may be competing 3 social science evidence. And I would like to stop 4 there and I had promised Your Lordship that I 5 would go to the three cases that I referred to at 6 the end of the day Butler Sharpe and Malmo-Levine 7 I'm only going to go to Sharpe and Malmo-Levine 8 this morning partly in the interests of time. 9 But I do want to make one other point because 10 it ties in here. And that is that Parliament 11 doesn't have to wait for the harms to manifest 12 itself. In our submission 9 section 293 is 13 properly viewed as a preventative provision. 14 There are harms associated with the practice of 15 polygamy and the Amicus and some of the other 16 challengers suggested you could deal with those 17 harms in other ways. There are other provisions 18 that would address those harms. 19 But I submit in many ways that argument 20 amounts to let's wait for the harms to actually 21 manifest them selves and prosecutor the people for 22 those harms. In other words let's wait for abuse 23 of children, let's wait for other offences to 24 actually occur and then prosecutor them and I 25 submit Parliament does not have to wait. If 26 there's a reasonable apprehension the risk of harm 27 Parliament is entitled to act to try and prevent 28 those harms and I would submit that is, in fact, a 29 very reasonable thing for Parliament to do to act 30 to try and prevent harms rather than waiting for 31 those harms to manifest themselves. 32 As I say there are three cases where these 33 principles have been developed in the Supreme 34 Court Canada the Butler decision Sharpe and 35 Malmo-Levine most recently. I would like to go to 36 the Sharpe decision which was in 2001 in this case 37 the court was dealing with child pornography and 38 whether child pornography could be criminalized 39 and there's a copy of Sharpe in volume 3 of that 40 joint book of authorities change it's at tab 37 in 41 volume 3. And in that case the Court was again 42 dealing with disputed evidence with respect to the 43 impact of child pornography and the court in that 44 case made it very clear that Parliament cannot be 45 held to a higher standard of proof than the 46 subject matter and in that case there were some 47 studies that linked child pornography to the harms

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1 and a reasoned apprehension of harm was made out 2 on that evidence the Court addresses what it sees 3 as the pivotal question. And in paragraph 85 the 4 Court poses the question what standard of proof 5 must the Crown achieve and demonstrating harm 6 scientific prove based on concrete evidence of 7 reasoned apprehension of harm. And the court says 8 the trial judge actually came out of the BC courts 9 the trial judge insisted on scientific proof based 10 on concrete harm with respect this sets bar too 11 high in Butler which was the earlier case I 12 referred to considered obscenity prohibition of 13 the Criminal Code this court rejected the need for 14 concrete evidence and held that a reasoned 15 apprehension of harm sufficed a similar standard 16 must be employed in this case. 17 18 Now, I think it's useful to consider what the 19 evidence was in Sharpe. And in Sharpe at the 20 trial level dealing with the harms related to the 21 possession of child pornography the Crown called 22 two witnesses. One of was a detective from the 23 Vancouver Police Department who was an expert in 24 the investigation of child pornography and she 25 talked about the police being able to obtain 26 search warrants because of the availability of 27 possession charges and had assisted them in 28 finding child molesters. The second expert and 29 the only other expert called by the Crown was a 30 doctor a specialist in forensic psychiatry with 31 respect to sexual deviance and pedophilia. He had 32 treated patients with sexual defiance problems and 33 his testimony or in his testimony he offered 34 several reasons why child pornography is harmful 35 to children and he goes through and he said some 36 pedophiles show children sexually explicit or 37 adults with other adults in order to lower 38 inhibitions. The second is that pornography 39 excites child molesters to commit offences the 40 third is that it augments or reinforces the 41 cognitive distortions of peed pedophiles and the 42 fourth one is that children are abused in the 43 making of pornography and the films and records 44 are a record of their abuse and I go through that 45 because I think those were the harms that were 46 being alleged or put forward by the expert in that 47 case. He relies on two studies that were put into

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1 evidence. The first one found that slightly more 2 than a third of the child molesters and rapist 3 that the authors studied claimed to have been 4 incited to commit an offence by exposure to 5 certain materials and the second study found that 6 child molesters have a greater exposure to 7 pornography than rapist and used it in association 8 with criminal offences and found child molesters 9 use to relief their impulses to commit offences. 10 And interesting and noteworthy there was no 11 evidence led of any study demonstrating cognitive 12 distortions caused any significant increase that 13 pedophiles posed to children. And I'm going to 14 this evidence in a little bit of evidence because 15 I think it's striking the amount of evidence led 16 in that case. It was essential a single expert 17 that put forward harms and there were two studies 18 supporting that. And that was -- that was the 19 evidence. 20 And the court weighs that evidence in Sharpe 21 made a number of findings and based on its 22 findings found that the provision was not 23 constitutional. And that's why when you arrive at 24 the Supreme Court and of Canada and go back to 25 when we arrive at the Supreme Court of Canada 26 finds the trial judge misunderstood the task 27 before him. And that he had had insisted on 28 scientific proof of the harms. 29 The court found in that case had found the 30 harms had not been made out on that evidence. And 31 the Supreme Court of Canada reassesses that 32 evidence applying the reason Alberta apprehension 33 of harms test and this is many paragraphs 34 following on from 85 and 87 and 88 and 89. And 35 they make these fundamental points in that case. 36 And in paragraph 87 they allude to the first 37 alleged harm concerns cognitive distortions this 38 was changes the Crown's argument child pornography 39 may change the professor's attitudes any ways that 40 make them more likely to sexual abuse children. 41 The had discounted this harm due to the limited 42 scientific evidence linking cognitive distortions 43 to increased rates of offending. But the court 44 applied the reasonable apprehension of harm test 45 came to a different conclusion and S.A.I.T. said 46 while the scientific is not strong I'm satisfied 47 the evidence in this exists exposure to child

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1 pornography may reduce pedophiles defences and 2 inhibitions of sexual abuse of children and it's 3 important to keep that in the context of what the 4 evidence was. The court said that was sufficient 5 to support the existence of a connection. 6 And in paragraph 89 the second alleged harm 7 was that the possession of child pornography fuels 8 fantasies making pedophiles more likely offend and 9 note will were actually differences in the studies 10 some found a link between it and some suggested 11 that had, in fact, pornography might provide 12 constitute satisfaction and reduce offences. And 13 the trial judge had put those two sort of 14 competing studies together and found they couldn't 15 say the net effect was to increase harm to 16 children. 17 And the court says the bottom of page there in 18 paragraph 89 the more fundamentally the errors the 19 trial judge proceeded on the basis scientific 20 proof was required. The lack of unanimity this 21 scientific is not fatal rather complex human 22 behaviour may not lend itself to precise 23 scientific demonstration and the courts cannot 24 hold Parliament to a higher standard of proof than 25 the subject matter and they say some studies 26 suggest that child pornography like other forms of 27 pornography will fuel fantasies and may incite 28 offences in the case of certain individuals. 29 And I'm spending a little bit of time on this 30 because I think it's tempting in this case where 31 we have received so much evidence to think that 32 Your Lordship needs to review all of that and make 33 detailed scientific findings and you don't. The 34 question for Your Lordship is there a reasoned 35 apprehension of harm. 36 And I submit that when you compare the 37 evidence presented to the court in Sharpe with 38 respect to the harms and possession of child 39 pornography and you look at the evidence presented 40 in this case with respect to the harms linked to 41 the practice of polygamy that there is a reasoned 42 apprehension of harm 43 THE COURT: But the degree of harm might tip the balance 44 on section 1. 45 MR. REIMER: Which leads exactly into the discussion -- 46 the next case of Malmo-Levine. 47 And in Malmo-Levine the court exactly turned

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1 its mind to that question. And Malmo-Levine there 2 is a copy of Malmo-Levine and I'm going to urge 3 Your Lordship in many ways I think Malmo-Levine 4 addresses many if not all of the arguments being 5 made in this case. I think there are striking 6 similarities between Malmo-Levine and this case. 7 But Malmo-Levine is also in volume 3 and it's 8 at tab 31 in that volume. 9 And in that case at paragraph 133 on page 44 10 the Court discussed the question of how harmful 11 behaviour or practice needs to be before 12 Parliament can constitutionally act. 13 And the Court in that case said in paragraph 14 133 we do not agree that harm must be shown to the 15 Court's satisfaction to be serious and substantial 16 before Parliament can impose a prohibition. Once 17 it is demonstrated as it has been here that the 18 harm is not diminimus or in other words the harm 19 is not insignificant or trivial the precise 20 weighing and calculation of the nature and extent 21 of the harm is Parliament's job 22 THE COURT: Sorry, 135 are you. 23 MR. REIMER: 133. 24 THE COURT: 133. Sorry. Yes. 25 MR. REIMER: So we have in clear indication in the 26 Supreme Court Canada defer deference to Parliament 27 in this case once there's a reasoned application 28 of harm and a harm that is not insignificant or 29 trivial and coming back to Your Lordship's 30 question directly the harms being alleged the 31 harms of polygamy being alleged are not 32 insignificant or trivial. If the harms that are 33 being alleged there's a reasonable apprehension I 34 submit there is of the types of harms alleged 35 these are not in any way insignificant or trivial 36 harms. 37 And then going down to 135 the other comment I 38 draw out of the Supreme Court of Canada's decision 39 in the case is the middle of 135 the majority 40 responding to the descent judgment there indicates 41 just la bell writes it cannot be denied that 42 marijuana can cause problems of VOURing nature and 43 severity to some people or to groups of them. So 44 there's a risk of harm to some people. 45 That being the case if there's a risk of harm 46 to some people we think the charter allows Pamment 47 a broad although certainly not an unlimited

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1 capacity to respond. 2 So I don't want to sort of further belabour 3 the point but just in brief the task of this this 4 Court is on all of the evidence that is been put 5 before you is there a reasonable apprehension that 6 the practice of polygamy poses a risk of harm to 7 some people. And in many ways can almost be 8 thought of in the other way. When you look at all 9 of the evidence that is before you can you 10 reasonably say that no one or actually say can you 11 say that nobody be could reasonably appear 12 apprehend a risk of harm. There may be 13 differences in the evidence but I submit 14 overwhelmingly the evidence points to harms of 15 polygamy but even if there is that sort of 16 conflict in the evidence the Supreme Court of 17 Canada has been clear Parliament does not have to 18 wait pour that the jury can be still be out 19 Parliament is an able to act can we disregard all 20 of this evidence and say there is no reasonable 21 apprehension of harm here and I simply say we 22 can't. And I think my friends will disagree and 23 piece by piece we'll need to disregard all of the 24 evidence but on that point it's about the body of 25 evidence here. It is not about picking up a piece 26 of evidence and saying we can disregard this and 27 one and this one and this one. Because as BC has 28 been saying repeatedly for the last few days it's 29 been the convergence of the evidence in this case. 30 It's about the body of evidence put before Your 31 Lordship. 32 And if there's that reasonable apprehension of 33 harm and I submit there is then Parliament has a 34 broad constitutional mandate to legislate and to 35 it act to prevent those harms. 36 Turning then to some of the evidence that's 37 before Your Lordship and I'm sure you'll be happy 38 to know I'm not intending to go through the 39 evidence or all of the evidence in had detail this 40 morning if nothing else I understand some of my 41 colleagues are hoping to make flights at the end 42 of the day. 43 And that evidence has been reviewed in the 44 what amounts to by my calculation I think 45 somewhere in the neighbourhood of 1,000 pages of 46 submissions it's been reviewed by the BC in part. 47 But I would like to focus on a few pieces evidence

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1 and I'm going to focus on the evidence called by 2 Canada in this evidence and I'm going to look at 3 the evidence of professor did he remember prove 4 cook, proper professor witty and the evidence that 5 Canada called in this case was intended to offer 6 some additional perspectives on the prohibition of 7 polygamy. It it offs the prospective from a cross 8 cultural point it offers an international human 9 rights law perspective and it offers a historical 10 perspective. 11 Before I look at that evidence in more detail 12 I want to make two fundamental points. One is 13 that it is striking that these same harms are 14 recognized over and over again. You look at the 15 social science literature you see the same harms 16 to women, to children, to men. You look at the 17 international human rights law evidence and you 18 see the same harms being recognized by the treaty 19 bodies and by the nation states. You look at the 20 historical evidence and for 2,000 years the same 21 harms have been recognized throughout the west. 22 And I think it's very easy at some point to say oh 23 look more evidence of harm to women and children. 24 And I just urge the Court when you're looking at 25 this to not discount evidence because it's 26 repetitive and, in fact, that's what gives it some 27 of its power the very fact we are seeing those 28 same harms you're seeing it around the world and 29 throughout history and I think that's a 30 fundamental point. 31 The second point I make with respect to this 32 evidence and it comes back to our interpretation 33 of the section. Is that when you look he it the 34 evidence its evidence of harms related to the 35 practice of multiple marriages. What is being 36 studied in these cases are are multiple marriages. 37 It is the study of polygamy because I started with 38 is actually defined as multiple marriages that is 39 what the evidence of harm is. 40 Canada called the professor did he remember as 41 an expert in this case. She is an internationally 42 recognized political psychologist. She has 43 studied polygamy for ten years and she prepared an 44 expert report in this case she was accepted as an 45 expert, in fact, her qualifications are not 46 challenged by anybody in this reference. And as 47 part of her expert report she summarized the

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1 literature relating social science literature 2 relating to the practice of polygamy and she 3 indicated in her report many had her testimony ha 4 she conservatively estimated she had had read 5 several HUN articles on books of polygamy during 6 her years studying the practice and she presented 7 what she described as fair comprehensive 8 representative sample of existing literature drawn 9 from peer reviewed articles. And there were a 10 number of other experts on this matter who also 11 conducted a review of the literature. Professor 12 Grossbard, professor Campbell Bala Henrich did 13 some of it professor Beaman and the review of the 14 social science literature shows a consistent set 15 of harms. The literature is diverse and it is 16 drawn from various academic disciplines. The 17 authors of it are using different methodologies 18 and different approaches but regardless of the 19 fact they are all coming from different places 20 they all come the vast vast majority of this 21 literature comes to the same conclusion which is 22 that polygamy is linked to harms and they're the 23 same harms that show up over and over and over 24 again. 25 Physical and sexual abuse, psychological and 26 mental health problems, lower level of equality 27 and dignity for women and children. Higher rates 28 of female and infant mortality. Exploitation of 29 young girls and we go on. Economic hardship and 30 deprivation and in our argument starting at page 31 21 we have reviewed some of that literature, the 32 literature that was summarized by professor 33 McDermott and in her review she identified various 34 categories of harms and one of the categories of 35 harms are harms to women and the social signs 36 literature indicates very clearly women in 37 polygamous marriages suffer physical, mental and 38 emotional harms at risk of increased mental health 39 problems clueing psychological stress marital and 40 family functions and lower degrees of life 41 satisfaction. 42 And one of the experts and one of the 43 academics who is repeatedly citeded in the 44 literature review by a number of the experts issal 45 Krenawai who has been doing a number of studies in 46 the Middle East and I think it's useful [phonetic] 47 and no, I'm not intending to do this for all of

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1 the literature review but I would like to take 2 Your Lordship to Dr. AlKrenawai's lastal natural 3 and this was put in through professor Grossbard in 4 her testimony. She actually introduced this 5 article and it's contained I've actually provided 6 and I hope Your Lordship has a copy of it. 7 [Phonetic] it's yet another white binder. 8 THE COURT: Yes. Thank you. 9 MR. REIMER: And I just compiled a number of documents 10 I might be referring to during my submissions for 11 ease of reference. And if you go to tab C3 in 12 that binder you have an article from professorial 13 Krenawai an article from last year and I'm taking 14 Your Lordship to it because I think there's 15 actually some power in looking at the social 16 science literature itself. A lot of it has been 17 summarized by the expert and I'm not proposing to 18 do their job. They're the experts they have 19 compiled it but I think there's some value in it 20 looking at the articles and looking at what they 21 they say. 22 Is and in this case professorial decree in a 23 way talks about and it comes back to the point 24 polygamy is defined as a marriage in which a 25 spouse of either gender has more than one meat at 26 the same time. He talks about polyandry is 27 relatively rare and in contrast polygyny defines 28 one man having more than one wife is the most 29 common form so what he's looking at here again is 30 the effects of polygamy, the effects of multiple 31 marriages. 32 And in this case he was studying 309 women, 33 187 from polygynous families 1 2 2 from monogamous 34 families in the west bank and he sets out the 35 results of his studies and his analysis in various 36 charts and tables contained in that report but I 37 refer Your Lordship to page 4 in article where 38 he's talking about the results of this study. And 39 on page 4 the bottom of the page in the right-hand 40 column after he's gone through his statistical 41 analysis the effects of polygamy he says family 42 structure was found as a major predictor of family 43 functioning marital satisfaction and low self 44 esteem specifically was identified women from 45 polygamous families experienced more problems in 46 family functions more marital problems compared to 47 monogamous women. Experienced more mental health

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1 symptomatology. So this is his most recent study 2 showed yes there are these meant health impacts on 3 women and he goes on in his discussion on page 5 4 now in the left-hand column that the results that 5 he found are, in fact, consistent with the other 6 social science literature out there. He look test 7 the studies conducted in the UAE, Kuwait, Egypt 8 Jordan the Gaza strip all reporting more 9 psycho-social familial economics monogamous 10 families. And he goes on and on and talks about 11 more psychological distress. Major psychological 12 crisis. The right hand column it's quite commonly 13 reported the pair tree arrest call leads not only 14 to women's subordination but also sexual physical 15 and emotional abuse at the hands of their 16 husbands. 17 It talks about the economics of polygamy and 18 then it's evident characteristic of competition 19 and jealousy is commonly observed within plural 20 marriage communities. Over on page 6 that first 21 paragraph previous research about two thirds of 22 the way through that previous research lower 23 academic achievements and men's psychological 24 problems in polygamous entire familial structures 25 and for current and future families and 26 communities. 27 And he concludes on page 7 that practitioners 28 in policy makers need to be aware of the effects 29 polygamy on women senior wives and their children 30 and that as a result show lower family functioning 31 and higher marital distress in a polygamous family 32 may in turn impede children's growth and 33 achieveements and understood within the context of 34 multi generations 35 THE COURT: Now, this is polygamy in -- this is 36 mainstream polygamy from the point of view it's 37 not in an isolateded community; is that right 38 MR. REIMER: Exactly. And in a place where it's 39 recognized I mean in a place where it's 40 recognized in other words this is not a scenario 41 where these people are in an isolated community 42 and I go to that because I think there real in 43 looking at those articles. The experts come in 44 had and you look at the social science and they 45 identify the same harms to women and children but 46 when you look at what those articles are actually 47 saying I think it's very powerful and I think it

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1 it's also professor al Krenawai carefully 2 identifies the impacts are not limited to the 3 participants in the polygamous marriage I think 4 part of the argument here is that people 5 consenting to it. The children in here being 6 affected are not consenting. The broader 7 community that's affected by this as well are not 8 consenting so I think it's a bit of -- it's a bit 9 of a misleading road to go down to say the 10 participants are consenting. 11 And again [phonetic] so carrying on then in 12 the literature review as I said provetor McDermott 13 is doing this review and they identify these harms 14 to women, physical mental the emotional harms and 15 even professor Campbell who was called as an 16 expert by the Amicus in her social science 17 literature review says based on the availability 18 literature would seem that polygamy could bear 19 quite negatively on the health of women. Most 20 research indicates women take subsequent wives 21 when there's intense rivalries between co-wives 22 and if they perceive polygamy as depriving them of 23 individual freedom or autonomy. 24 And the literature goes on at the health harms 25 economic harms people suffer and there are 26 actually studyies from Africa demonstrating 27 polygamy causes economic under development and 28 interesting enough one study that quantitative 29 banning polygamy increased savings by 70 percent 30 and increased out put by 170 percent so in other 31 words there was significant effects. 32 As I say there doesn't seem to be any real 33 dispute in had the social science literature there 34 are harms to women. When you look at that social 35 science literature with respect to the effects of 36 polygamy on women it is very hard to look at all 37 of that and say there's no reasonable apprehension 38 of any harm here. We can -- we can talk about 39 scientific proof and I will go the to that a 40 little bit because because professor McDermott 41 actually deals with with that idea but Parliament 42 is not required to wait for scientific proof. I 43 come back to are with we started this morning. Is 44 there a reasonable apprehension of harm and based 45 on the social science literature yes there is. 46 The social science literature also talks about 47 harms to children and the physical mental

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1 emotional harms they suffer. And again just take 2 Your Lordship to one study in particular in this 3 case at tab D 5 in that binder I provided. This 4 is a study on polygyny and child survival in west 5 Africa. And if you go to page 83 in that which is 6 about two or three pages in that in excerpt I 7 provided and after doing the analysis of the data 8 in that case the right-hand column at the bottom 9 the conclusion is that even with controls for the 10 more proximate variables children of polygamy that 11 is about 48 percent to 3 percent higher than that 12 experienced by children of Missions and other on 13 the overall infant mortality we find the polygyny 14 effect to are 60 to 70 percent over that 15 experienced by children in monogamous marriages. 16 8 # the nest page down the top of the 17 right-hand column discussing the results the 18 continued significance of polygyny shows 19 regardless of the social context in which it is 20 practised polygyny poses a significant risk factor 21 for child survival in west Africa and my friend 22 will say and they did say studies from are the 23 Middle East. You can't apply those to Canada. 24 I'll address that because professor McDermott 25 exactly looks at that issue. 26 But there's also a more general response to 27 that more general question to that. Which is that 28 these studies which is only one example small 29 sample of the literature in the Brandeis briefs 30 and referred by the experts certainly raises an 31 apprehension of harm. And again comes down to 32 well it wouldn't happen in Canada. The question 33 is is there an apprehension of harm and I find it 34 very hard to when you look at this say no there's 35 it no apprehension of harm. This just wouldn't 36 happen. 37 We go on in our argument and we look at the 38 harms to children that have been identified. The 39 increased stress in mother child relationships 40 fact that fathers in polygynous households are 41 unable to give sufficient attention to older 42 children and this can reduce children's emotional 43 security and educational achievements. There have 44 also been harms identified to men the gender 45 imbalances that are created, the violence against 46 junior men and boys to push them out the 47 polygamous communities and many many of these

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1 harms are acknowledged by professor Campbell who 2 was called to testify in this case. There is not 3 a lot of dispute that the social science 4 literature shows. 5 The harms from polygamy also ripple outward 6 throughout society. Firstly the harm suffered by 7 individuals as a result of polygamy the women in 8 the relationships, the children in the 9 relationships those affect others within society. 10 That is known societal harm. But there are also 11 call them sort of more difficult to measure, more 12 difficult to prove harms and there's been 13 discussion about the links between practice of 14 polygamy and democracy and notions of equality. 15 And social stratification and despotism and the 16 link between polygamy and sort of a produced 17 reduction in the right to equality was recognized 18 very recently in had that Quebec report that came 19 out this the fall where it talked about polygamy 20 has a structuring effect on an entire society 21 because it inis at this in a lieses inequality 22 between the sexes and ensue borety nation of 23 women. Where we talk about apprehension of harm 24 and talking about for example attitudinal changes 25 from child pornography. And the Court talks about 26 the difficulty in proving those things and you can 27 only hold Parliament to the standard of proof 28 that's possible. And these cases with you're 29 trying to show ^ * the link between the practice 30 of polygamy and notions of equality and notions of 31 democracy that there is certainly evidence 32 combined with reason that says yes, there's an 33 apprehended risk. 34 And I want to take Your Lordship to two more 35 articles specifically. One of these articles 36 appears at tab D9 at binder of materials I 37 provided. 38 THE COURT: TabD. 39 MR. REIMER: D9 My Lord. 40 THE COURT: Thank you. 41 MR. REIMER: 42 Q And this is an article by Valerie Hudson and 43 Andrea boor talking about a surplus of men and 44 deficit of piece it Asia's largest states 45 [phonetic] and it comes back to this notion of the 46 effects of polygamy in creation of the sex ratio 47 imbalance and the impacts of that. And if you go

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1 to page what is the top of the page there, page 2 numbers and actually 2763 suggesting how much 3 material is in the Brandeis brief. At the very 4 top of the page the very type of government to 5 which an nation can aspire can be tied to the 6 status of women in society. When that status is 7 very low possibility force a full and meaningful 8 democracy and peaceful foreign policy are 9 distinctly less and over on the next page the 10 first full paragraph there they're talking about 11 the politics of handling significant numbers of 12 bare branches and this hads referring to young 13 men. They say the relationship we see is not 14 straightforward cause and effect. Strive in the 15 war obviously take place within normal sex ratios 16 cultures as well nevertheless exagerrated 17 conflict. All we have found high sex ratio 18 societies and contexts of unequal resource and 19 general resewers scarcity breed chronic violence 20 and persistent social disorder and KROPGS. In 21 conclusion inequality is a potentially serious 22 source of scarcity and insecurity. She talk and 23 governments had failed to preserve that public 24 good do their societies a disservice with tangible 25 negative consequences. 26 And I'm not trying to pull these articles to 27 say you know these are the key articles. These 28 are a sample of what is in the Brandeis brief. 29 But over and over what's in the Brandeis brief is 30 evidence linking the practice of polygamy to 31 harms. Harms to individuals harms and women harms 32 to men. 33 And also harms to society more generally and 34 again I come back to the test is there a 35 reasonable apprehension of harm and I submit the 36 social science literature creates that reasonable 37 apprehension of harm. 38 Now, as I alluded to earlier the ago and other 39 challengers to much of the social science 40 literature is to say well we have to be careful in 41 applying that literature to Canadian society and 42 they urge caution. They say those harms cannot be 43 generalized. And professor McDermott recognizing 44 that very question turned her mind to it and said 45 there are a number of harms identified in the 46 social science literature. Can we generally lies 47 from those. Can we show that there's a

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1 generalizable correlation between polygamy and 2 harms that have been identified in the social 3 science literature. And as she says that's 4 statistical analysis was intended to supplement 5 and validate the anecdotal social science 6 literature and to help us understand how those 7 harms play out in broader context. 8 And professor McDermott conducted a 9 statistical analysis of the effects of polygamy 10 using data from approximately 170 countries around 11 the world. She had data from every country with a 12 population of over 200,000 people and she it 13 tested 18 of the effects that had been identified 14 see if there was a generalizable correlation 15 between polygamy and these effects that 16 transcended the particularities of the discrete 17 studies that are in the social science literature 18 and her statistical analysis demonstrate that 19 correlation that there is a link between the 20 practice of polygamy and harms and that link is 21 not dependent on the particular context. 22 Professor McDermott's analysis demonstrated 23 wherever the rates of polygamy increase there was 24 a corresponding increase in a whole host of 25 negligent consequences for both individuals and 26 for society in general and those effects included 27 increased levels of physical and sexual abuse 28 against women. Increased rates of maternity 29 mortality. Shot earned female life expectancy. 30 Left lane lower levels of education and had lower 31 levels of education for both girls and boys. 32 Lower levels of equality for women. Higher levels 33 of discrimination against women, increased rates 34 of female genital mutilation. Increased 35 trafficking in women. Decreased levels in civil 36 and political liberty and we go on. 37 And I would like to spend a little bit of time 38 considering prove pour McDermott's statistical 39 analysis because it both corroborates and is 40 corroborated by the other evidence in this 41 reference. The Amicus response to professor 42 McDermott's statistical analysis is actually quite 43 SHOURT he basically urges the court to dismiss her 44 study in its entirety as utterly the correlation 45 she found are implausible it's more reasonable to 46 believe, in fact, there is no correlation between 47 polygamy and these harms. And I'll turn to some

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1 of that criticism in a moment. But I think one of 2 the important things to bear in mind is that the 3 correlation between the practice of polygamy and 4 these harms as has already been identified by the 5 social science literature review is already in the 6 social science literature. Professor McDermott is 7 not conjuring up these effects or correlations she 8 is testing whether the known correlations can be 9 generalized. 10 I submit professor McDermott's statistical 11 analysis in this case was what I would describe as 12 classic expert evidence. She was called in to 13 provide evidence and to assist this court in this 14 understanding something that we all need assistant 15 with in understanding. In other words she was 16 doing statistical analysis she was called in here 17 because we cannot do that on our own. 18 Professor McDermott's expertise and her 19 authority to provide the statistical analysis 20 wasn't challenged by anybody. Her methodology was 21 not challenged by anybody. The data she relied on 22 was not challenged by anybody. 23 Professor McDermott's study can only be 24 described as a large scale study. She described 25 it best of her knowledge as the most comprehensive 26 cross cultural and cross national statistical 27 analysis of polygamy to date. Nobody else has 28 done similar work. Her study included every 29 country in the world with a population of over 30 200,000 which amounted to just over 170 countries 31 roughly 90 percent of the countries in the world. 32 And she looked for that large data pool to in her 33 words allow her to get traction of the Canada us 34 and inference the broad range of the data that she 35 drawn on helped to insure that the results she 36 obtained the correlations of the statistic cellses 37 she found are not the product of particular 38 differences between individual countries. And I 39 come back to that point and I think it's 40 fundamental because the Amicus raises that point. 41 But it's not useful not relevant and not 42 appropriate to isolate the data from a single 43 country and say well this is inconsistent with 44 your study. That's not what she is doing. She is 45 looking at the entire pool of data from these 170 46 countries and looking for the correlation in that 47 pool of data it's not an individual case study

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1 that's the whole point it's trying to show is this 2 data generalizable. 3 And in her regression analysis what she was -- 4 regression analysis is capable of doing is 5 establishing the likelihood if there would be 6 certain consequences arising despite sort of 7 individual differences in the data set. 8 So she is doing a very large scale study 9 drawing on a very large pool of data. And the 10 data that she is relying on has not been 11 challenged by anybody. Nobody challenged the data 12 that she relied on. She confirmed in her am am 13 testimony and in her report and her study was 14 based on Prudential and credible sources ^ * and 15 professor McDermott conducted a very conservative 16 statistical analysis NLS analysis she did not 17 approach her analysis with a pre-existing 18 hypothesis about the direction of correlation in 19 other words the approach she used to could just 20 have easily shown among the rates of polygyny 21 rates of increases the levels of education goes 22 up. It could just have easily have shown the 23 effects of polygamy the correlation TWEEP the 24 prevalence of polygamy and the levels of education 25 was a positive one. And she said she used that 26 when she described as a two-tailed test because 27 when she testified in the direct testimony to this 28 that it's a conservative test. It does not 29 presume the direction of the relationship between 30 the variables and the effects she identified 31 professor McDermott testified she was very life to 32 the need to employ proper controls in her study 33 and they come to she was qualified in as expert to 34 do this. She was aware and alive to the need to 35 employ the proper controls in her study. 36 And she testified that she controlled for 37 gross domestic product in her study because in her 38 evidence it's the monster variable that explains 39 an enormous amount of things in complex social 40 systems and because she was testifying testing for 41 a whole range of effects the most important 42 control, the thing to control for was that 43 variable that might affect all of those things she 44 was testing. She this was not a matter of saying 45 it might affect one of the variables she was 46 testing for but the other 17 would be unaffected 47 GDP was that variable that -- she said in the

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1 literature GDP has been recognized as having that 2 effect in tab 85 of materials I provided to you 3 and starting at page 2 this is professor 4 McDermott's tell me on December 16th and in her 5 direct examination SHIEZ asked starting at line 9 6 she noted in her report it's SPORN to control for 7 variables that cause the outcomes you're 8 examining. She is asked to explain that and her 9 answer so whenever you look at a statistic NABLS 10 there's always a possibility the relationship 11 you're exploring is, in fact, explained by some 12 other cause so the classic example with this is 13 smoking and lung cancer and it took experimental 14 research to show lung TISH tars and nicotine that 15 caused lung cancer. But in essence what you do 16 when you control in a statistic model you try as 17 best you can to say if you hold this third 18 variable constant and you change this other 19 variable do you still get an effect on the things 20 you're interested in explaining. 21 And she goes on in your analysis what was the 22 control you used and she says I used gross 23 domestic product as measured in terms of US 24 dollars a standard measure used for wealth. And 25 why did could you that she says I did that because 26 that is in existing will IT CHUR not with regard 27 to polygyny but with regard to an entire host of 28 social and political variables really the monster 29 variable that explains an enormous amount of 30 things in complex and social political systems. 31 So if you look at a lot of work for example in 32 COMPLIK and things like that GDP is almost always 33 the thing that is most powerful in terms of 34 explaining a whole host of variety of outcomes 35 people are ready in explaining if you can find a 36 variable that still emerges significant that 37 really means you have something because GDF P all 38 the literature is really the monster variable and 39 other controls that would also she would 40 characterizes a monster control most may relate to 41 specific outcomes but not to a whole variety of 42 outcomes. Is what she says. It wouldn't affect 43 all of at the things she was tested so provetor 44 McDermott is very alive to the need to control. 45 This is what she does. She does statistical 46 analysis and even after employing the very 47 conservative methodology and controlling for GDP

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1 all of the THUPGS she tested for are significantly 2 the discrepancy between law and practice increases 3 as polygamy goes up. Countries of higher rate 4 women have more children than women in less 5 polygamous will states boys and girl less like toy 6 to receive an education. And it goes on and on. 7 And professor McDermott's statistic analysis 8 is a response to that question can you generalize 9 the social science literature and her answer based 10 on her statistical analysis is yes you can. 11 Q Now, as I said when I started discussing professor 12 McDermott the Amicus and other challengers didn't 13 challenge her credentials or methodology or 14 conclusions they suggest now professor whoa MOOIT 15 have disagreed and that was never put to her and 16 he frankly was never asked her about they suggest 17 he might I submit that is simply improper at this 18 point to attribute and a critique of professor 19 Mcdoor mat work to professor whoa when he was 20 never asked about it. He also suggests that maybe 21 she didn't quad control for an unknown as we gone 22 through she was aware of the need to control. She 23 identified that variable that might actually 24 affect all of the other things she was testing for 25 that's the not the we're not looking at single 26 examples in a larger data set. The whole point of 27 a regression analysis is to look at the entire 28 data set and look at the correlation between this 29 case the prevalence of polygamy and various 30 affects based on that entire data set and at one 31 appoint the Amicus suggests Abracadabra I guess in 32 short response to that I don't think it's 33 appropriate to dismiss sort of statistical 34 analysis an entire sort of field of study as some 35 sort of cheap trick. She was called to do the 36 analysis. She was accepted as an expert in doing 37 that analysis and she provided her testimony. I 38 don't think it could simply be dismissed now 39 without some basis. 40 And the Amicus also suggests some of her 41 correlations just seem I am plowsable and appoints 42 to the correlation between prevalence of polygamy 43 and defence spending and I come back to the point 44 where we started which is that she was testing for 45 correlations that had been identified in the 46 social science literature and we looked at some of 47 that literature earlier. This link between levels

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1 of violence in a society between sex ratio 2 imbalances in the society and the effects that has 3 on a society have been reviewed in the social 4 science literature so her conclusion that the 5 prevalence of polygamy may be in other words a 6 partial foundation for levels of defence spending 7 is actually supported by the social science 8 literature it's actually what you would in many 9 ways expect to see it's not so unreasonable you 10 can say we just dismiss it. 11 So it leaves the question what is the 12 significance of I submit her statistical analysis 13 makes possible to understand the inherent or 14 structural even with GDP control and even if you 15 use a very conservative methodology polygamy is 16 linked with particular harms that hold across 17 different contexts across different time and 18 across different space. In other words, the 19 connection between polygamy and the harms are not 20 did depend upon a particular religious cultural 21 national class ratio or ethnic con SKEKS that's 22 one of the continues to be raised yes there is 23 evidence of harms elsewhere what do you do with 24 that and professor McDermott helps in part to 25 answer and she looks at 1 # 0 countries draws from 26 the entire data set and says yes that literature 27 can actually be generalized. 28 Interestingly enough professor McDermott also 29 indicated that although there are are individuals 30 who may claim to benefit from being in polygamous 31 marriage there's been no statistical demonstration 32 that polygamy benefits most men or women boys or 33 girls or society considers as a whole. And she 34 similarly concluded after her extensive literature 35 review and as I said she spent ten years studying 36 polygamy read hundreds of articles the have aes 37 vast majority of the peer review literature has 38 not found those benefits. 39 Now, just few points on professor McDermott 40 and that might be an appropriate time for a break 41 My Lord. 42 THE COURT: Thank you. 43 MR. REIMER: The one of the issues that has come here 44 here the Amicus raised and some other challengers 45 with respect to the question of causation and the 46 fact that the experts were careful to say whether 47 or not polygamy caused the harms and they all

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1 talked about a very and consistent correlation 2 between polygamy and various harms. 3 And I submit that that care, that attention to 4 detail is, in fact, perfectly in keeping with the 5 concept of causation in science and in the social 6 sciences and in that context causation is somewhat 7 of a loaded word and I'll come to professor 8 McDermott's testimony but to establish causation 9 is the only way to do that is through 10 experimentation and you cannot experiment with 11 polygamy although Mr. Jones has suggested that if 12 fact that's actually what we're doing in Canada. 13 I also come back to some earlier points which is 14 that when we started this morning this Court is 15 not looking for scientific proof we come back to a 16 reasonable apprehension of harm. 17 I just on that note if we go to tab A4 in that 18 material. Again testimony from professor Mcdoor 19 met actually the first day she was testifying. 20 And at page 80 in that binder starting at the 21 bottom of page 8 will 0 her answer at line 42 22 being asked by the limitations statistical 23 analysis in relation to the literature and she 24 says with the any of the qualitative literature or 25 quantitative you can never prove AUS Asian the 26 only method that proves causation is 27 experimentations but you can't do experiments with 28 polygyny bus it's unethical marital structure. So 29 when you do is you work on the information you 30 have and you examine statistically the variance in 31 relationship between polygamy ask these dependent 32 variables she on it gives you very strong grounds 33 to look at the time cells between these things and 34 depending how strong the statistic relationship it 35 can can tell you the probability of the causal 36 relationship is untrue is very very very unlikely. 37 Very remote. But it cannot prove the anecdotal 38 can prove anything one way or the other. The only 39 definitive test to get that way is experiment tall 40 and she is referring to scientific levels of proof 41 she is speak as a scientist and Your Lordship at 42 that point then asked her the question when you 43 say proved could you prove it on a balance of 44 probabilities. And her response to that question 45 was that's basically what statistics does. What 46 is does it says less than 5 or 1,000 percent 47 likelihood this chance would emerge as

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1 statistically emerge as accident under a suturous 2 understand statistically significant relationships 3 to provide the fundamental of causal inference. 4 She goes on to talk about people do make 5 causal inferences based on statistics but 6 experimental purist would still say you need to 7 document the micro fundamental basis for the true 8 with war general these other complex social 9 behaviours it's unethical to do experiments or 10 implausible to do experiments. 11 So she looks at it and she says there's a 12 statistic correlation and correlation has been 13 strong enough to draw that causal inference 14 because you cannot do experiments in this ace but 15 we are not looking for scientific proof but 16 reasonable apprehension of harm. 17 And the last point I'll make before the break 18 that correlation in this case is not limited to 19 professor McDermitt's study. Her study shows a he 20 have very strong correlation enough to draw that 21 causal inference but the correlation is also when 22 we started with and talked about the evidence DPEM 23 straighting across all the evidence in this case 24 is what the BC has described as a convergence of 25 the evidence. 26 And professor Grossbard was called by the 27 Christian legal fellowship made this point very 28 well in her testimony. It is also contained at 29 tab C2 in that binder. And at page 30 in 30 cross-examination of this point by the Amicus 31 starting at line 25 she is being asked she said 32 inner report it's very revealing this is at line 33 28 the cross culturally polygamy is associated 34 with a large of features that seem undesirable 35 either from a strictly female perspective or from 36 the perspective of society's best interest. It's 37 put to her that you don't mean TEZ revealing of 38 some causal polygamy and these institutions she 39 goes ton O say I do think the juxtaposition of so 40 many institutions that are bad for women with 41 polygamy even though each of caused by polygamy 42 but WUPS you look at the picture and see more than 43 ten different fact THARS undesirable with women 44 associated with polygamy I think from the 45 juxtaposition from all these institutions and 46 consequences we can conclude more than we can 47 interest a single association of one institution

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1 of polygamy so I would conclude I conclude there 2 is some degree of cautionalitier here and polygamy 3 causes some of these institutions to be created. 4 And she is asked you do don't know which 5 institutions are caused by polygamy. No I 6 couldn't say one which in particular but the fact 7 so many are present also indicates my conclusion 8 is that men in polygamous societies will 9 manipulate the social institutions in the ways 10 that will facilitate their control of women and 11 prevent women to capture what otherwise would be 12 their value and then the discussion goes on. And 13 if you go over to page 32 highlight one last 14 response from professor Grossbard at line 28. But 15 I can can say if allow polygamy you're going to 16 eventually help men control women such as female 17 significance easy divorce bride price et cetera 18 et cetera some of these things will happen. And 19 this is probably an appropriate place for a break, 20 My Lord 21 THE COURT: Thank you. 22 THE CLERK: Order in court. Court is adjourned for the 23 morning recess. 24 25 (MORNING RECESS) 26 27 THE CLERK: Order in court. . 28 THE COURT: Thank you Mr. Reimer. 29 MR. REIMER: Yes, My Lord. So this morning we've been 30 talking about the evidence in this case and 31 reasonable apprehension of harm and we've looked 32 at some and I would say just some of the social 33 science literature and we've looked at professor 34 McDermott's statistical analysis examining whether 35 or not the harms identified in that social science 36 literature can be generalized. 37 And also just before the break professor 38 Grossbard's point that we made earlier the fact 39 they are repeated often you see the same harms 40 occurring again and again shows the correlation 41 between the practice of polygamy and its harms. 42 When I come back to the fundamental point 43 which is that this reference is really about the 44 body of evidence before the court. It's not about 45 this particular article that particular article. 46 It is when you look at the body of evidence that's 47 been put before you is there a reasonable

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1 apprehension of harm. 2 And in addition to the social science 3 literature that we've talked about it's also 4 significant and Canada called the evidence on this 5 point that the prohibition of polygamy is 6 supported by a broad international consensus. And 7 that consensus included representatives of States 8 where polygamy has historically been permitted 9 including certain African and Asian nations. 10 And it's significant and, in fact, undisputed 11 that international treaty bodies have consistently 12 condemned the practice of polygamy northeast 13 stated PRIG violates the dignity of women and 14 discriminates against them. They also said 15 polygamous marriages contravene a women's and 16 KWEPSs for her and her dependents and those treaty 17 bodies have called for polygamy to be in their 18 words definitely abolished wherever it continues 19 to exist and have urged polygamous marriages be 20 discouraged and prohibited. And there's a strong 21 consensus under international rights law that 22 states are obligated to take all appropriate 23 measures to eliminate forms of discrimination 24 including polygamy against women. 25 Now Canada called professor cook to provide 26 evidence regarding international human rights law 27 in this case. Professor cook is an 28 internationally recognized scholar, international 29 human rights law and women's rights she is the 30 chair of international human rights law at the 31 Ontario of Toronto law school. And she has served 32 on various legal and advisory boards and frankly 33 her qualifications to provide this evidence wasn't 34 challenged and with a particular focus on women's 35 rights and state's obligations. And I'm not 36 intending to spend a lot of time this morning 37 going through professor cook's evidence. 38 But it is another piece of the puzzle. Its 39 yet more evidence of the harms that have been 40 recognized, the harms of polygamy have have been 41 recognized recognized by international bodies and 42 as I indicated at the start Canada's ratified 43 various international treaties that are relevant 44 to the practice of polygamy and these include the 45 international covenant or civil and political 46 rights the convention on the rights of children, 47 the convention on the elimination of all forms of

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1 discrimination against women. And with each of 2 these treaties there's a treaty body that provides 3 general comments and general recommendations to 4 provide guidance to state parties on what they 5 have to do to bring their laws, policies and 6 practices into compliance with their obligations. 7 And those treaty bodies have consistently 8 condemned the practice of polygamy. It's already 9 alluded to in it theology school and the graduate 10 general comment polygamy violates the dignity of 11 women. And actually this is at tab B 33 in that 12 binder of materials that I provided I just take 13 Your Lordship to it because there's really no 14 dispute of the clarity of the condemnation in this 15 case at tab B3 at page 5. Paragraph 24 about two 16 thirds of the way down that page. The last lines 17 in that paragraph it should also be noted that 18 equality of treatment with regard to the right to 19 marry implies polygamy is incompatible with this 20 principle. Polygamy violates the dyeing knit of 21 women. It's an discrimination against women 22 subsequently should be definitely abolished 23 wherever it continues to exist. And he with see 24 similar language from are the women's committee 25 under CEDA [phonetic] which is at tab B2 in that 26 same binder. And at paragraph 14 in that general 27 recommendation. The top of the page. State 28 parties reports also disclose that polygamy is 29 practised in a number of countries. And they say 30 polygamous marriage con have a convenience a 31 women's right to equality with men and have can 32 can have serious emotional and financial 33 circumstances for her and her dependents that such 34 marriages ought to be discouraged and prohibited 35 the committee notes with concern some state 36 parties whose constitutions guarantee equal rights 37 minimum polygamous marriage in accordance with 38 personal or custody marry law and breaches of 39 article 5A of the convention. And as recognized 40 in that general recommendation and as professor 41 cook set out in her report and in in her testimony 42 the treaty bodies recognized wrongs inHARPT to and 43 associated with practice of polygamy as we saw 44 just saw in that general comment. Treaty body has 45 recognized the polygamy can can have such serious 46 and emotional financial consequences to her and 47 her and hers meaning to her and her children such

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1 marriages ought to be discouraged and prohibited. 2 And again what we see in the reports and in 3 the treaty bodies conclusions observations over 4 and over again are the effects of polygamy and a 5 recognition that polygamy may undermine women's 6 mental physical sexual and reproductive health. 7 Professor Cook went through his concluding 8 observations and you see that consistently 9 repeated and I come back to the point we made the 10 very start of the day. That when you look at the 11 evidence before Your Lordship you see the same 12 harms over and over again. They show up up in the 13 social science literature. They show up in 14 international human rights bodies and show up in 15 the historical evidence. 16 And they are are the same harms. Negative 17 emotional and psychological impact on girls. 18 Demographic pressure boys subject to exclusion 19 beings you see parental neglect and you see health 20 implications for women and girls. Prove so cook 21 also testified that global trend around the world 22 is to prohibit polygamy. 23 And it's interesting when you turn to this 24 point that there is that global trend to prohibit 25 polygamy. We don't see the practice of polygamy 26 being permitted in any other western country and 27 my friend made some point about this in talking 28 about polygamy and bigamy is what is prohibited in 29 the various countries and I think it's important 30 on that point to note that bigamy is polygamy 31 bigamy is having more than one wife. The 32 prohibition of bigamy is the prohibition of 33 polygamy. Countries will have different 34 legislation but they are all prohibiting polygamy. 35 He this are all prohibiting multiple marriages. 36 And there is that global trend and the treaty 37 bodies have urged as we saw the be a litigation of 38 polygamy urge states at that I would like to an 39 appropriate measures to eliminate polygamy. 40 The last thing professor cook looked at is the 41 balancing between the elimination the prohibition 42 of polygamy and other competing and she looked at 43 the rights to privacy and family law, right to 44 freedom of religion, right to enjoy one's culture 45 and her evidence was there was little support 46 under international law or any claim that freedom 47 of religion permits the practice of polygamy.

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1 The human rights committee has interpret the 2 police as precluding relying on religious freedom 3 to prevent gender discripple in an atry found 4 polygamy violates these equality provision it's 5 clear from the human rights committee perspective 6 the prohibition of polygamy is a reasonable limit 7 on freedom of religion. 8 The Amicus and the other challengers responded to 9 professor cook's evidence point out the fact that 10 none of the human rights treaties cited by her 11 mention the word polygamy. Now, on that narrow 12 point they don't mention polygamy. The treaties 13 are more broadly worded they prohibit all forms of 14 discrimination against women but the treaty bodies 15 issue guidelines in comments and observations that 16 provide guidance and the meaning of those treaty 17 provisions and in this case and the Amicus doesn't 18 dispute this those general comments and concluding 19 observations he are very clear. The international 20 human rights community has condemned the practice 21 of polygamy and has urged it is be an a litigation 22 and the important of this evidence is it provides 23 another articulation of the connection between 24 polygamy and harm and I keep coming back to this 25 point because at the end of the day this is really 26 BC talked about the convergence of evidence. I 27 talk about the body of evidence in this case. 28 When you look at all of the evidence before you 29 Q A reasonable apprehension of harm and you look at 30 the social science literature and you look at the 31 statistical analysis and look at the the comments 32 of the international human rights community and 33 they all recognize harms and the same harms of 34 polygamy. 35 The last piece of the puzzle is the historical 36 piece. Canada called professor witty on the 37 history of marriage and the western tradition and 38 in particular on the treatment of polygamous 39 marriage. He was qualified as an expert in legal 40 history in marriage and historical family law to 41 provide evidence on the development and evolution 42 of the dyadic marriage structure and the 43 prohibition of polygamy in the western tradition. 44 And he traceed the history of polygamy the history 45 of the prohibition of polygamy through watershed 46 periods in the western tradition ancient Greece 47 and Rome to the biblical and early Christian era

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1 to the early ages Protestant reformation and many 2 cases he actually expanded on the evidence of 3 other experts. 4 And there were several things that eye 5 memoried very clearly from his evidence. One is 6 that the prohibition of polygamy is a 7 long-standing prohibition. It predates the rise 8 of Christianity by several centuries. And the 9 practice of polygamy and the prohibition of 10 polygamy have been consistently linked in the 11 western tradition to harms and they're the same 12 harms that are recognized in the social science 13 literature today, recognized by international 14 human rights community and they include harms to 15 women ex-plow I experimentation, commodification, 16 objectification, social isolation, physical and 17 mental deprivation POFT and he says polygamy is 18 consistently as a violation of the fundamental 19 dignity and rights of women. 20 Harms that children have also been recognized 21 throughout children. Negative impacts on 22 development of children, competition between 23 mother and siblings for limit attention of the 24 father impoverishment and violation of dignity to 25 the child and harms to men against competition of 26 young ostracism of young men. Threats to society. 27 Threats to civil order. Threats to political 28 stability. Harms to good citizenship. The 29 undermining of human dignity and equality. And 30 these harms are are consistently recognized and 31 they have the same harms we see today. 32 And the Amicus doesn't challenge professor 33 witty's evidence. His response SBLly is that 34 professor WUTty's evidence is not tailored it a 35 discussion of section 293 and in the sense 36 professor witty was not merely looking at the 37 legislative history of 293. He's correct. 38 Professor witty was providing the broader 39 historical context a far broader and more 40 comprehensive understanding of the prohibition. 41 The prohibition of polygamy that has been based on 42 harm and those harms have been recognized for 43 hundreds if not thousands of years in the western 44 tradition. 45 And the Amicus at one point in 46 cross-examination of professor wit thank you 47 suggested that the prohibition against polygamy is

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1 simply one more thing that should be thrown on the 2 dust bin of history. And that really has no 3 relevance compared to laws against sodomy and the 4 same sex marriage debate. Professor witty 5 responded to that suggestion and he says in his 6 testimony at that point that he pointed out that 7 you couldn't make that comparison. In his words 8 sodomy is now what we would call a victimless 9 crime and that KWISHs it Sharpely from polygamy 10 that has victims of with Edmonton and children and 11 men that partner if the institution and his 12 testimony underscored a crucial point. Is that 13 the prohibition of polygamy has always been based 14 on the harms of polygamy, the recognized harms. 15 It's not based on moralty it's based on those 16 harms of polygamy. 17 And he also rejected this comparison we 18 compared the civil rights rights of gays and 19 lesbianisms and he said no that's that same 20 analogy can't be used because the prohibition of 21 polygamy is based on harms and if there's one 22 thing the evidence before Your Lordship has shown 23 it's those harms can consistently repeated. They 24 have been recognized throughout history they have 25 been recognized in the social science literature 26 they are recognized by the international human 27 rights community. 28 And so I come back around and I'm not planning 29 to spend more time on this point. This is really 30 that first question that I posed for Your Lordship 31 at the end of the day yesterday. And the question 32 that Your Lordship has it to answer is there a 33 reasonable apprehension that the practice of 34 polygamy poses a risk of harm. If there is that 35 reasonable apprehension then Parliament is 36 entitled to impose a criminal prohibition. And 37 again Parliament is not required to have 38 scientific proof it has ton to be a reasonable 39 apprehension and in this case when you look at all 40 of the evidence before you and we have touched on 41 only a small portion of it even in the last few 42 days between B.C. and Canada, the body of evidence 43 shows there's a reasonable appear a HENGS of harm. 44 Many order to find that there's no reasonable 45 apprehension of harm the Amicus would have to 46 persuade you to disregard a huge body of evidence. 47 You would have to disregard the social science

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1 literature, disregard the statistical analysis, 2 disregard history evidence, disregard 3 international human rights evidence, disregard the 4 evidence coming out of Bountiful and just on that 5 point yes there clearly is a reasonable 6 apprehension of harm in this case. There is a 7 reasonable apprehension that the practice of 8 polygamy, multiple marriages pose a risk of harm. 9 Pose a risk of harm to individuals and pose a risk 10 of harm to society. 11 I'm proposing at this point to turn to the 12 next question which had put forward which was the 13 purpose and interpretation of section 293 subject 14 to questions on the first issue we've been talking 15 about. 16 THE COURT: No, thank you. Go ahead. 17 MR. REIMER: The first part of this deals with the 18 purpose of section 293 which BC identified as one 19 of the issues that they dealt with. And I'm not 20 planning to spend a lot of time on this. We agree 21 with their submissions we have dealt with also in 22 our written submissions. The only thing I would 23 add and flowing out of the discussion the 24 historical evidence in this case the prohibition 25 of polygamy section 293 has to be seen in that 26 context. As well it is a reflection of a 27 long-standing prohibition against polygamy. 28 Against multiple marriages and that prohibition is 29 based on harms that are very reasonably 30 apprehended. 31 However I would like to spend some time 32 talking about the interpretation of section 293. 33 It's probably trite to to say that the modern 34 interpretation of statutory interpretation or the 35 modern approach requires in the words of an Act 36 are to be read in the entire context or moneyous 37 with the scheme of the act, the object of the Act 38 and the intention of Parliament. The Amicus and 39 the other challengers in this case have urged the 40 Court to give section 293 a broad interpretation. 41 And they have urged that broad interpretation 42 because at the end of the day they also want to 43 argue that section 293 is overbroad and therefore 44 unconstitutional. 45 It's Canada's position that section 293 should 46 be given a more focussed interpretation. And 47 Canada's interpretation is supported by historical

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1 or legislative context of the section, the 2 language of the section, the intention of 3 Parliament when they enacted the prohibition and 4 the jurisprudence, the court decisions that have 5 considered the section. 6 And just one last general point. At the end 7 of the day Canada submits that the interpretation 8 of section 293 is more focussed. But if the Court 9 finds there may be several possible 10 interpretations of section 293 the Courts have 11 been clear it should be given that it 12 interpretation that would minimize the overbreadth 13 concerns. 14 So what does section 293 prohibit? I submit 15 as I did at the start of these SMIKZ yesterday 16 afternoon section 293 prohibits multiple marriages 17 it prohibits polygamy and polygamy by definition 18 means multiple marriages. Section 293 is not 19 about multiple party unmarried relationships. 20 It's not about sexual relations or cohabitation 21 based common relationships section 293 prohibits 22 multiple by civil have religious or culture or 23 other means 24 THE COURT: Sorry not about common law cohabitation 25 rhyme error. 26 MR. REIMER: Not about cohabitation based common law 27 real estates and I will come back to that point 28 because I think that's one of the fundamental 29 things the Amicus is urging that would encapture 30 common law relations which are based on 31 cohabitation and I will talk about that. 32 Section 293 is consistent with the evidence in 33 this case and the evidence when we're talking 34 about the evidence of harms is that there are 35 harms associated with multiple marriages. There 36 are harms associated with polygamy. And therefore 37 what the provision prohibits multiple marriages 38 it's consistent with the harms that have been 39 recognized. The harms that are associated with 40 multiple marriages the provision prohibits 41 multiple marriages. 42 THE COURT: Or conjugal unions. 43 MR. REIMER: Or conjugal unions but I submit a conjugal 44 union is a marriage. And that's really the 45 fundamental point. And I base that on all of the 46 contexts and the language. And if you look at the 47 start of section 293 it was introduced in 1890 in

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1 a bill entitled an Act respects offences relating 2 to the law of marriage. It started off as a 3 provision dealing with marriage. And section 2293 4 appears in a section of the Criminal Code along 5 with what can only be clearly recognized as other 6 marriage offences. It appears with bigamy which 7 is clearly about marriage. It appears with 8 procuring a feigned marriage in 292, 292 is 9 pretending to solemn inside. Section 295 is 10 marriage contrary to law. And I come back to the 11 point that all of those offences are about 12 marriage and polygamy prohibition of polygamy is 13 also about marriage. It is not captured under any 14 relationships. None of other offences around it 15 are dealing with unmarried relations they are 16 dealing with marriage. 17 And if you look at the language of section 293 18 and it's actually contained in that joint book of 19 authorities in volume 1. These are the buff 20 coloured. 21 THE COURT: Right. 22 MR. REIMER: And if you go to tab 2 in that book. 23 Deuced in 1992 it talks about in sub A everyone is 24 FWLT of an indictable offence who practices or by 25 the rights ceremonies, for thats rules or custom 26 was any denomination sect or society religious or 27 secular or by any form of contract or by mere 28 mutual consent or by any or method whatsoever in a 29 matter ROIS DZ by law a binding form of marriage 30 or not. It talks about agrees or concepts to 31 practice or enter into any form of polygamy. And 32 then in sub B it talks about celebrating or being 33 a party to any such right Orser money. Which 34 purports to make binding or sanction sexual 35 relationships and if it you go to the wording of 36 current provision at 293 which is at tab 1. 37 THE COURT: Yes. 38 MR. REIMER: You see that same language in 293 sub B 39 talks about celebrates assistance or is a party it 40 a; right, ceremony, contract or consent. And I 41 highlight this language because those are all 42 terms that are associated with marriage. And they 43 have a distinct meaning within the context of the 44 marriage. Even the notion of concept you talk 45 about a right, ceremony, contract or consent. 46 Marriage at its heart is a contract. A marriage 47 contract. And consent was historically a way of

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1 entering into a valid marriage. The Courts talked 2 about mere consent and it was consent to a 3 matrimonial relationship. You were consenting to 4 be married. 5 So it's clear when you look at the language of 6 293 and the earlier provisions the language in 7 those sections is a language of marriage. It's 8 talking about; rights ceremonies contracts 9 consent. This is THOT consent to live together. 10 This is no the consent to cohabit and I make that 11 point because the Amicus has suggested well the 12 consent how SHAS broad EPed the meaning of section 13 293 to encapture you be married relationships but 14 consent in this context is a way of entering into 15 a marriage. The history you can talks with mere 16 consent as a way into enter into a marriage 17 THE COURT: You wouldn't infer consent? 18 MR. REIMER: No. 19 THE COURT: Consent is objectively there or not? 20 MR. REIMER: You are consenting to enter into a 21 marriage by consent you are consenting to enter 22 into that marital relationship. 23 THE COURT: So mere living with somebody to are a long 24 time. 25 MR. REIMER: Is cohabitation. 26 THE COURT: It might be a common law but it not a 27 marriage for the purposes of 293. 28 MR. REIMER: Exactly, in fact, if you look at that 29 specific factor pattern or essentially that same 30 fact pattern comes in the toll hearse case 31 [phonetic] in that case and I'll touch on it the 32 people in that case have been living together for 33 a number of years they have been living together 34 as man and wife. They had four children together 35 all registered at their children with vital 36 statistics and the court said no that's actually 37 not captured by 293 because you need to be living 38 this under the guise of marriage. In other words, 39 cohabitation was not sufficient to bring you into 40 the scope of 293. 41 And I think it helps to understand the purpose 42 and the interpretation of section 293 if you step 43 back a moment and look at the legislative scheme. 44 The Criminal Code is seeking to prohibit multiple 45 marriages. And if you think about it there are 46 several different ways that a person could be in 47 multiple marriages. A person could enter into

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1 multiple SU I will have marriages in Canada. A 2 person could enter into multiple civil marriages 3 outside of Canada and then come here. Or a person 4 could enter into multiple religious or customary 5 marriages those sort of dupe la Canada tiff 6 marriages inside or outside of Canada and in all 7 three cases you end up with a person in multiple 8 marriages. 9 Ask many the Criminal Code what Parliament has 10 sought to do is to prevent multiple marriages and 11 why are they seeking to prevent multiple marriages 12 because I come back to the evidence over and OEF 13 again because there's evidence of remember has 14 associated with multiple marriages. 15 THE COURT: Well, I guess you could have said in toll 16 hers surely the same harms attached to polygamy or 17 to multiple marriages apply -- would arise in the 18 toll hers relationship [phonetic] to be 19 characterized as you just described. But 20 Parliament has drawn a line. 21 MR. REIMER: Exactly and, in fact, that argument when 22 you run it a little bit is actually this provision 23 is too narrow. Like in other words there may be 24 harms. 25 THE COURT: Mr. Macintosh. 26 MR. REIMER: If you run that -- if you accept the 27 evidence of harm is related to multiple marriages 28 if you want to argue there are harms related to 29 multiple unmarried relationships as well many fact 30 they should also be prohibited but that is 31 Parliament said we have harms that multiple 32 marriages we are prohibiting you will I am if, in 33 fact, unmarried relationships emerge in the future 34 that is a decision for Parliament but as I say 35 that is an under inclusiveness question and not a 36 basis to strike down 293. 37 So if we look at those three ways of entering 38 into or being a multiple marriage in Canada 39 multiple civil marriages which is prohibited by 40 the big ma provision and I come back to the point 41 I made earlier which is that bigamy is a form of 42 polygamy. They're not -- they're not sort of 43 separate it's not bigamy is DITS majority of these 44 students there was a fear that wasn't the case. 45 MR. REIMER: Well there was a fear -- there was a tier 46 because there was a fear the about I go MI 47 provision might not be sufficient to prohibit all

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1 multiple marriage north side the concern was we 2 may not capture. 3 THE COURT: Correct. 4 MR. REIMER: The other forms of marriage so you got the 5 bigamy provision, you then have 293 which as Your 6 Lordship is aware there are two branches to 293. 7 The first branch 293 (1)(a)(i) prohibits any form 8 of polygamy. In our submission that is addressing 9 that second issue we talked about what I would 10 describe as the foreign polygamy. In other words 11 people who are married civilly outside of Canada 12 and they come here. They are now. 13 THE COURT: One does. 14 MR. REIMER: SNIECHLTi). 15 THE COURT: The so called two legal. 16 MR. REIMER: Exactly. And the second branch which 17 probably attracted the any kind of. 18 THE COURT: You know part of it when it talked about 19 polygamy it talked about Mormon polygamy in 1890 20 it wasn't really thinking about two legal marriage 21 was it. 22 MR. REIMER: Well. 23 THE COURT: The Mormons two marriages in the United 24 States wasn't legal. They kept using the word 25 polygamy I'm having a little bit of trouble with 26 sub 1 being the two legal marriages and sub 2 27 being everything else of the. 28 MR. REIMER: Well, I think if it you look at as being 29 multiple marriages what these provisions between 30 29 # # and is trying to prohibit they were trying 31 to prohibit all multiple marriages and could be 32 and there was that concern that the bigamy 33 provision was in 1890 might not capture the Mormon 34 practices sorry the multiple religious customary 35 marriages so there is what is brought in 36 essentially sub # 2 which is that conjugal union 37 offence to try and wrap all of that -- all of that 38 up. 39 THE COURT: Or sub 2 could just be illegal. 40 MR. REIMER: It could be it's interesting the case law 41 has always been focussed on sub 2. Everyone is 42 being charged under the conjugal union offence in 43 other words that appears to be what is actually 44 capturing when we look at the case law people are 45 not being charged with any form of polygamy they 46 are being charged with TUSHLly cohabiting in a 47 conjugal union which is I mean that did it

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1 actually now talks about in a conjugal union but 2 the important point you you still have to in a 3 conjugal union. Cohabitation has never been 4 sufficient. And that might be actually a useful 5 time to look at some of the case law. 6 And the courts have consistently held that 7 section 293 applies only to multiple marriages and 8 as I said most of these decisions have focussed on 9 the meaning of the term conjugal union. People 10 are being charged with cohabiting in a conjugal 11 union and I want to stop at that point because I 12 think it's important to look at and consider the 13 term conjugal union. The term conjugal union is 14 used synonymously with marriage. Union is the act 15 or instance of uniting of joining two or more 16 things into one. The word union was used in the 17 high case it was used most REEMENT will this the 18 civil marriage act in 2005 can ask it's not used. 19 Not used in federal legislation to referred to 20 unmarried XHOB law partners. In other words it's 21 very ease is I to focus on this case on conjugal 22 and ignore the word union. But there's a 23 difference between a conjugal relationship and 24 conjugal union. You can't speak of the concept of 25 conjugality. 29 # PROBTS a conjugal union and a 26 conjugal union relates to or not real estate to a 27 conjugal union is a marriage and I'll go to. 28 THE COURT: Your friend cites a number of cases that 29 where the terms are used interchangeably and 30 that's his point. But you might say that's simply 31 sloppy drafting by judges who aren't thinking of 32 the specific problem we are faced with. 33 MR. REIMER: I think there's that. I think there are 34 more recent cases and I don't think they're trying 35 to define the term. 36 THE COURT: That's a nicer way of saying. 37 MR. REIMER: We got into this conversation he talked 38 about common law marriages and we had the 39 discussion already what he meant by common law 40 marriage and he actually agreed he was referring 41 to a common law relationship appreciating common 42 law marriage in law has a specific -- it is a 43 valid marriage it is not a common law relationship 44 so I mean I don't think this is uncommon you know 45 you get some of the slippage in the language. So 46 the first case I would turn to is in volume 2 the 47 buff coloured books again. At tab 30 and this is

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1 a decision Regina v. McGRI. 2 THE COURT: Sorry, tab? 3 MR. REIMER: Tab 30. Now, this is a decision from 1891 4 so essentially coming out with the provision 5 itself. And this case still did unlawfully live 6 and cohabit in conjugal union and the facts in 7 that case if you look at the third paragraph, the 8 facts of cohabitation and each of them were 9 married to other parties were fully proved so this 10 was a case Mr. La BRIE was cohabiting with rose an 11 Martin and it was proved they were married to it 12 other persons it was proved they were, in fact, 13 co-habiting. [Phonetic] and the court over on 14 page 2213 actually there you see this matter was 15 reserved and went up essential will you on appeal. 16 The defence argued the top of page 213 there muss 17 be a conjugal union some form of ceremony. The 18 object of the law was not O prevent eye morality. 19 It's not intended to present mere con due BIENage 20 which the parties supposed to be binding on them. 21 The words conjugal union imply there must be some 22 tie between the parties apparent from the statute 23 there must be some form which they might suppose 24 to be binding on them on which the law was 25 intending to prohibit. Here you have on the facts 26 you have cohabitation established and the court 27 said 293 doesn't apply because there's no c the 28 and in the context referring to a marriage 29 contract. And then if you go to shin bone which 30 is case from 18 the 9 this appears in that same 31 volume tab 22. It should number volume 2 at tab 32 22. 33 THE COURT: Tab 22. Sorry. 34 MR. REIMER: . 35 THE COURT: Okay. All right. 36 MR. REIMER: And in this case paragraph 2 the evidence 37 showed the prisoner had been married according to 38 the marriage customs of blood Indian killed 39 herself. Both of whom were living with him as his 40 wives and there was a form of contract which he 41 had supposed binding upon them. And if you go 42 over the page next page on page 330 in the bottom 43 of the page talks about wherever marriage is 44 governed by consent constitutes marriage and that 45 consent is shown by the parties living together 46 then it goes on to say unless some statute has 47 rendered the observance of form of marriage

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1 necessary no particular form for concepting the is 2 nothing more is needed in language that is 3 mutually understood or any mode declaratory of 4 intention we come back to the very notion that the 5 marriage contract can be entered into consent but 6 the consent accepting each other as husband and 7 wife is entering into a marriage contract. Again 8 the count found there was a form of contract 9 between the parties which they supposed binding on 10 them. 11 And if if it you look over on page 331 in that 12 case, sorry, still back at tab 22 13 THE COURT: Yes. Bottom of page 331 is actually a 14 conjugal union meaning of the mere fact of 15 cohabitation between a man and a women each of 16 whom is married to one another will not sustain 17 conviction under section 278 of the code and 18 recited the la BREE case. So it's been recognized 19 that cohabitation can can sustain conviction. 20 Sorry, My Lord there was one another case I 21 want to refer Your Lordship to that didn't actual 22 make it into the book of authorities. I'm going 23 to hand up a copy if I might. And I believe it 24 might actually be in the BC book of authorities 25 already. This is the decision of Trudeau versus 26 the king. And again in this case Mr. Trudeau was 27 charged under section 310B and this had is 28 cohabiting and conjugal union who is married to 29 another and the facts of that case interestingly 30 enough Ms. MRUF had married another man in a 31 marriage ceremony in 1914. Her first husband it 32 had gone off to work had subsequently disappeared. 33 Mr. Trudeau subsequently married Ms. MRUF in a 34 church lived with her at different times after the 35 marriage and both Ms. MRUF's marriages were 36 contracted in legal form. Mr. Trudeau deserted 37 Ms. MRUF and she brought the charge of polygamy 38 against him. And there was discussion in that 39 case about again what was captured by section what 40 was section 310 at the time. [Phonetic] and if 41 you go to page 789 in that decision. Five member 42 panel talking about comments from just it TUS 43 Walsh in this case and he's looking at polygamy 44 and conjugal union and what is contemplated by a 45 conjugal union and at the bottom of page 789 talks 46 P both A and B conjugal union the defence is 47 committed when a person will I was in conjugal

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1 union with a married woman. Then if you go down 2 to the first full paragraph on 7 # 0 it's actually 3 could haved by sub B here as in sub A the 4 prevailing. 5 THE COURT: Just a sec. Yes. 6 MR. REIMER: He sass here as in sub A the prevailing 7 idea is to limit plural marriages or rather unions 8 as the code styles them and section # # 10 was 9 designed to cover EFG of that class and nature. 10 So EFG of that recognition what is being limited 11 here are plural marriage as I say conjugal union 12 as the code describes them so again it's another 13 example. 14 THE COURT: It's interesting 78 9 is this justice Walsh 15 speaking with he says at the am above polygamy and 16 polyandry are both covered? 17 MR. REIMER: Yes. I was going to come back to that. 18 THE COURT: Sorry. 19 MR. REIMER: That is actually justice Walsh still 20 speaking. 21 THE COURT: Because over on 790 they suggest -- no 22 justice Barkley is below. Fine, thank you. 23 MR. REIMER: So if we look at the cases starting from 24 1891 when this provision was TOOUZed 1899 if you 25 look at 1935 the courts are consistently saying 26 what is captured by this provision are plural 27 MARJS. Not cohabitation. People are not being 28 convicted of cohabiting and in many case the 29 cohabiting is established and the Court says no 30 there need it be a contract a marriage contract 31 and in the last page the toll hers and write case 32 which is in volume 3 and I think I'm almost done 33 referring to case law. 34 THE COURT: Volume 3. 35 MR. REIMER: Volume 3 # at tab 40 I apologize I don't 36 know what Your Lordship has. In my case the tab 37 is in the wrong place. It has a first page that 38 says Regina versus BG that toll start opposite the 39 next page. 40 THE COURT: I have toll hers. 41 MR. REIMER: Okay. I spend a little bit of time 42 talking about the facts in toll hers because I 43 think they're important and in many ways 44 determinative of some of the issues that have been 45 raise MENTD. In this case Mr. Toll hers and 46 Ms. Wright James who will hers and May; right were 47 charged under 310B cohabiting the conjugal union

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1 with a person married to another. Both were 2 married to other persons. They were living 3 together over on page 320 the magistrate and May 4 Wright's husband were still living so were still 5 married were living together as man and wife and 6 had four children born to them were statistics a 7 Hamilton at their children. So again I'm 8 heighting here people who were clearly cohabiting 9 had children together. And the Court finds 10 section 310B the cohabiting ask conjugal union did 11 not apply. And they say that if you go down on 12 page 320 to essentially the last full paragraph 13 that starts with we think the crucial words of 14 subsection (b) are any kind of conjugal union. 15 These words predicate some form of union under the 16 guise of marriage and Parliament had no intention 17 in this section of the code dealing with the 18 question of adultery. In spiritual marriages and 19 was originally enacted respecting OCHSs relating 20 to law of marriage and it's follow the he had 21 moppeds law and aimed at PROIKS and I submit it's 22 a very clear statement interest the court about 23 what is captured it's not cohabitation relations. 24 It is some form of union under guys of marriage. 25 What is prohibited are multiple marriages. . 26 This is probably an appropriate time to break 27 I have a few more comments. 28 THE COURT: How are we doing is this is. 29 MR. REIMER: I likely have probably about another half 30 hour. I think that we might be an I believe to 31 make it. I ups Mr. Ma TAS actually believes -- he 32 was allocated an hour and he thinks he should be 33 able to get down in an hour. Mat mat even less. 34 Eventual potentially less. 35 MR. REIMER: And I look at. 36 MR. OLTHUIS: We had estimated an hour My Lord and I 37 expect we will need close it an hour. 38 THE COURT: Mr. The ma TAS is the one. 39 MR. REIMER: They actually both do. 40 THE COURT: So it doesn't sound like we have enough 41 time. 42 MR. REIMER: We could resume at ream at 1:30 I will 43 endeavour to finish by # or could you we come back 44 to you I know you don't or do you not like that. 45 MR. REIMER: Actually that's fine if I could have ten 46 minutes. There are a few specific responses to 47 the challenger's argument that would be useful to

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1 do but I could do those quite quickly. 2 THE COURT: Let's come back at 1. 3 MR. REIMER: 2. 4 THE COURT: No, 1:45. 5 MR. REIMER: Okay. 6 THE CLERK: Order in court. Court is adjourned until 7 1:45. 8 9 (NOON RECESS) 10 11 THE CLERK: Order in court. . 12 THE COURT: Mr. Reimer. 13 MR. REIMER: Yes, My Lord. Just briefly this afternoon 14 I just wanted to finish up the submissions with 15 respect to the interpretation of section 293 and I 16 want to return to one point can just briefly Your 17 Lordship raised and that dealt is sub A a, sub I 18 and this idea of multiple foreign marriages ^ * 19 and I would just refuse Your Lordship back to some 20 passages and I won't take you to them right now 21 but there are Pams in the parliamentary debates 22 where the references to foreign Muslim MARMs being 23 contemplated at the time and referring to ma ha a 24 medicines at the time of the possibility of 25 foreign marriages in addition to sort of MO Monday 26 celestial marriages and the other point I would 27 make on that issue is we've cited in our argument 28 a decision from the Federal Court called alley 29 versus Canada and this is volume 5 in the books of 30 authority that we filed and I don't know that Your 31 Lordship necessarily needs to go through it. It's 32 at tab 6 and you simply provide a reference for 33 information but it's a case of admissibility of 34 persons from Kuwait who he actually had two wives. 35 Two legal wives from Kuwait and there was a 36 question as to whether or not he was admissible to 37 Canada for criminality there's reference to the 38 practice of polygamy and the court found he was 39 unadmissible because he was a practice in polygamy 40 and the clear reference to the notion of practice 41 of polygamy and that is opposed to dealing with 42 under the conjugal union provision so I simply 43 make the point that Parliament was wafer aware of 44 the possibility of multiple foreign marriages and, 45 in fact, still dealing with them under that 46 provision. 47 THE COURT: Thank you.

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1 MR. REIMER: Then just briefly in response to the 2 proposed interpretation in particular by the 3 Amicus the Amicus and the other challengers have 4 argued that conjugal union should be given a broad 5 interpretation in section 293 (1) Aii should be 6 read as conjugal relationship and given a broad 7 meaning that would include any kind of committed 8 intimate relationship of some permanence and I 9 submit that the Amicus is urging the court to read 10 conjugal union as including conjugal real estates 11 and captures and on that point a common law 12 relationship touched on this already a little bit 13 is an unmarried cohabitation based relationship 14 and it's actually defined by statute whether or 15 not you have a common law relationship is defined 16 by statute. And I would submit that the 17 challengers argument that conjugal union should be 18 read as conjugal relationship and including common 19 law relationships is not supported by the relevant 20 evidence. 21 Perhaps first and perhaps most obviously it 22 simply not supported by the language or the 23 wording of the section. The is section actually 24 talks about a conjugal union this idea of simply 25 substituting conjugal relationship for conjugal 26 union is essentially changing the very words that 27 are in the provision and part of it is based on 28 the why FD consent or contract in section 293 that 29 somehow reads in a broader meaning of conjugal 30 union in that provision. And as I submitted 31 earlier those terms have meaning within the 32 context of marriage law and I mentioned some of 33 that a little earlier. I didn't provide some of 34 the authority for that and I would just refer Your 35 Lordship to the supplement book of authorities 36 which I believe Madam Clerk has put before you the 37 blue ones from the Attorney General of BC. 38 THE COURT: Yes. 39 MR. REIMER: It's volume 2. And at tab 28 in volume 2 40 there's a decision from British Columbia Court of 41 Appeal in can he tellty versus curry. [Phonetic] 42 and there's a useful discussion in this case of 43 the history of common law marriage and 44 requirements for valid marriage. And I just refer 45 Your Lordship to a few portions of this. If you 46 turn to page 8 in that decision. 47 THE COURT: Page?

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1 MR. REIMER: 8. I think it's 8 of 19. 2 THE COURT: All right. 3 MR. REIMER: They're talking there in the middle of the 4 page drawing everyly ways of forming a marriage 5 and they go through three ways there and the very 6 last one point 33 is by mere concept. So the 7 wording there is actually referring to consent and 8 it talks about forming a marriage and the 9 interesting thing of course when you're forming a 10 marriage by consent the very bottom of that it's 11 inso willable the parties could not release each 12 other. THU had formed a valid marriage at that 13 time and if you go over to page 11. 14 THE COURT: M'mm-hmm. 15 MR. REIMER: And at the bottom of page 11 there's sort 16 of a long quote near the bottom BLAN chart and had 17 an sell. [Phonetic] and they talk there about the 18 refresh my memories for a valid marriage and they 19 talk about about halfway through that quote 20 whatever else the requirements of a common law 21 marriage anywhere were two essentials had to be 22 present. One legal capacity to marry and two an 23 agreement to marry. 24 Again, all these passages simply indicating 25 this idea of consent and an idea of an agreement 26 or are fundamental to marriage and if you go over 27 to page 12 in that case the bottom of that page 28 they talk about a merely ma TRISHS is not a 29 sufficient basis of a common law marriage they 30 talk about marriage does not arise PR the mere 31 cohabitation of two persons or generally reputed 32 to be husband and wife. They talk about sexual 33 relations not sufficient to creating marriage. 34 Generally speaking you need concept on or an 35 agreement so again it's the fundamental emphasis 36 on the consent or agreement that is fundamental to 37 a marriage and I simply point that out to say 38 concept is simply not consenting to live together. 39 Not consenting to cohabit but consenting to marry. 40 So that's the language of the section and 41 the -- and in its proper family law context the 42 idea that section 293 P are conjugal union 43 includes common law relationships also I won't go 44 through again but toll hers where this idea of a 45 cohabitation relationship had been clearly 46 rejected by the courts and I would note professor 47 Drummond, in fact, agrees conjugal union were not

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1 formed on the basis of cohabitation. 2 And then finally the last point I would make 3 on this and I've provided copies to my friends and 4 I will hand up copies to Your Lordship. I want to 5 and the point I want to stress here is that the 6 interpretation, the Amicus's propose something to 7 read common law relationship and common law 8 partners into section 293 and it and the 9 significance here in 2000 so roughly 10 or 11 10 years ago now Parliament actually reviewed all of 11 the federal statutes they referred to marriage and 12 to spouses to determine whether or not those 13 provisions should be changed to include common law 14 partners and common law relationships. And that's 15 at what I've included here the modernization of 16 benefits and obligations act and as a result of 17 that they amended 68 federal statutes including 18 the Criminal Code. And the Criminal Code was 19 amended and I have included portions of the 20 Criminal Code here including section # 2 the 21 Criminal Code was amended include in section 2 a 22 definition of common law partner and in that 23 definition it provides that a common law partner 24 in relation to an individual means a person who is 25 cohabiting the individual in a conjugal 26 relationship having so could HABT habited for a 27 period of at least one year. 28 And then various provisions of the Criminal 29 Code including -- I include the example here 30 section # 215 which was the obligation to provide 31 the necessary as Is of life were extended to both 32 spouse and to your common law partner. 33 The significance of that of course is that 34 Parliament had looked at whether or not 293 P 35 should extend common law partners and include XHAN 36 law relationships and it was not extended to that 37 and if that interpretation were to be adopted now. 38 THE COURT: Sorry your last point was 293 wasn't. 39 MR. REIMER: It was not. And I'm urging an 40 interpretation of 293 that would read in common 41 law partners is actually inconsistent with 42 Parliament's actions and would actually be unpress 43 debted in reading in a provision that relies 44 relates exclusively to marriage also unmarried 45 relationships as well and the other point I would 46 point out there is a definition of common law 47 partner which actually determines the period of

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1 cohabitation required there's no definition of 2 common law partner for the purpose of 293 it's not 3 in there and I would submit as I say common law 4 partners is statutorily defined term. 5 So just in brief on the interpretation as 6 we've been suggesting it's our position that 7 section 293 # should be given a focussed 8 interpretation that it was focussed on the are 9 harm that had been identified and that it's 10 consistent with all of the evidence with the 11 historical legislative context, the language of 12 the section, the intention of Parliament, the 13 jurisprudence that's considered the section all 14 the support the narrow interpretation would be 15 given that should be adopted by this relevant 16 could. So those are my is you be many IGS subject 17 to questions on interpretation. I'm going to stop 18 at that time so other people have an opportunity 19 to speak and then you have another 20, 30 minutes 20 MR. REIMER: I may. I suspect it won't actually be 21 this afternoon but I might very well be back 22 tomorrow morning. Thank you. 23 THE COURT: Who is first. 24 MR. OLTHUIS: We are, My Lord. My Lord, for the record 25 it's Olthuis Olthuis initial BB. With me is 26 Ms. Milne initial C and Ms. Mccue initial S. And 27 I begin by thanking the Court and my friends for 28 their indulgence as to scheduling. 29 As a matter of housekeeping My Lord you should 30 have before you a copy of the written submissions 31 on behalf of the CCRRC and the David Asper Centr. 32 THE COURT: Buff colour. 33 MR. OLTHUIS: Yes buff is quite popular. We also filed 34 two other books unfortunately also buff one is a 35 book of authorities filed Friday. 36 THE COURT: Right. 37 MR. OLTHUIS: That appears to be it My Lord and this 38 document has not yet been filed but I passed to my 39 friend a condenseded book of materials which 40 includes excerpts from case law we may refer to 41 and some of the evidence too. 42 THE COURT: Excellent. OLT to the to help move along. 43 I including a case RV about anyone which I've 44 provided to my friends. I will be splitting the 45 submissions with Ms. Milne she is will open 46 submissions and provide a summary of where we're 47 going and the topics we'll variously address. I

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1 turn the podium over to her at that stage. 2 THE COURT: Thank you Ms. Milne. 3 MS. MILNE: Good afternoon, My Lord. Just to start 4 with the division of our argument I will be 5 approximately 30 minutes hopefully shorter if I 6 can. And then I'll be followed by Mr. Olthuis. I 7 will take the -- I will be taking you to our 8 analytical approach that we propose to the 9 evidence and to the law in the charter arguments. 10 I will also take you somewhat to the evidence and 11 also I will be addressing the issues related to 12 the failure to protect children and uphold their 13 rights to date and within that we'll addressing 14 the international laws that relate to children's 15 rights. 16 Mr. Olthuis will talk about the scope and 17 limitation of the rights [phonetic] particularly 18 with respect to the breach analysis and also our 19 specific approach to the reference questions. 20 I will start though by saying in terms of -- 21 in terms of the reference question itself we start 22 from the premise that the answer to the question 23 regarding the constitutionality of section 293 is 24 that yes, it is constitutional with one exception 25 that Mr. Olthuis will address which is in your 26 submissions in paragraphs 117 to 14 of the written 27 submissions our fundamentalist communities where 28 there is a significant amount of evidence of harm 29 and rights abuses of children. This in our 30 submission is has been the bulk of the evidence in 31 terms of the experience of polygamy within Canada 32 and it's impact on children and so our submissions 33 focus on that sort of microcosm if you will, of a 34 polygamous community. 35 It's our submission that the Amicus has sought 36 to minimize the role of the FLDS and the FLDS 37 experience and hold up others as examples of good 38 polygamy. In particular they hold up some of the 39 American witnesses and anecdotal NS witnesses 40 around some of the independent experience or 41 independent fundamentalist experience and I want 42 to take you first of all ask this is in our 43 condensed book of materials so the thinner of the 44 various volumes that are in front of you. In tab 45 7 is the cross-examination of marry bachelor and I 46 went to premise [phonetic] my remarks on her 47 evidence by saying she made it clear she did not

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1 work with the FLDS. She worked with the other 2 fundamentalist communities and on page 43 in 3 response to my questioning of her regarding the 4 education efforts that she had made within the 5 community she said that -- so the question is so 6 for and this is at lines 31 through 36 so for a 7 long period of time you said the community was 8 grateful for this information they didn't 9 necessarily understand that this was abusive 10 behaviour. And her answer was I don't think they 11 perceived under age marriage as abusive, no. And 12 by they she was referring to the group of 13 fundamental lis she worked with in particular so 14 it's our submission there isn't within the 15 fundamentalist community there really isn't a 16 sense of good polygamy as it affects children. 17 And before I get into some of the other -- our 18 actual approach and analytical sort of approach to 19 the arguments I also want to just take you to one 20 other witness and I just think we want to make a 21 submission with respect to weight or relevance and 22 that is with respect to professor Angela Campbell 23 and her cross-examination or excerpts from it are 24 at tab 8. And at page 24 to 25 and there was -- 25 there were previous questions as well relating to 26 this but lines through and I'm not going to read 27 hem in particular I'm going to summarize but 28 essentially from lines 4 through 16 on page 24 and 29 again through lines 19 to 24 on page 25 she 30 essentially acknowledges that she has absolutely 31 no expertise with respect to children and to many 32 terms of child development in terms of education 33 no clinical expertise and it's our submission any 34 of her preponders or comments about children 35 particularly in Bountiful should be disregarded 36 entirely. That at best it's lay observations of 37 her time there but I think it would be is your 38 submission she admitted it was a relatively short 39 period also there were unusual activities going on 40 it wasn't necessarily the ordinary life of the 41 community. There was a wedding, there were shows 42 that were put on so it's our submission her 43 evidence on that point should just be disregarded 44 in its entirety. 45 So you now want to take you specifically to 46 our factum and that's in terms of the governmental 47 response and that's paragraphs 50 through 57 of

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1 our written submissions and in the sense our 2 points are twofold. It has been suggested by the 3 challengers to the provision that other laws are 4 adequate to simply -- to protect children's rights 5 and we are saying that's just not supported and 6 secondly we do agree though with some of their 7 submissions in that the government has failed to 8 take the necessary steps to protect children in 9 this community. In a sense and I'll start with 10 the second point first. We have heard shocking 11 evidence about abuses to children within this 12 community. Mr. Jones mentioned the other day that 13 part of the way -- the reason we are are so 14 shocked by it there is evidence of complete 15 acquiesence by the community and I would actually 16 take that much further and I say there is evidence 17 of complicity by the community and acquiesence by 18 the government. 19 Ed government authorities through education, 20 child protection all of these systems that we put 21 in place to protect children have wholly 22 inadequately protected children in this community. 23 It's our submission that the sort of pattern lymph 24 of we will look after children has really failed 25 the children of Bountiful. And starting with the 26 school inspections, we note that and I won't take 27 you to yet another volume but the BC teachers 28 federation reproduces sections 13 and 14 of the 29 child family and community service Act at tab 7 of 30 their materials and I'm just going to take you to 31 one section I'll just read it to you which is 13 32 (1)(c KROESHGS which defines a child needs 33 protection if the child has been or likely if I 34 see CLI harmed or sexually exploited by another 35 person and if it the child's parent is unwilling 36 or unable to protect the child. Section 14 puts a 37 duty on everyone to report where they have a 38 reason to believe that's happened and I think that 39 the evidence certainly leads us to the conclusion 40 that members of the community, members of the 41 school community were most -- I mean the one place 42 that children can go as a bit of a refuge from 43 family have overlooked real signs of abuse. 44 The other area that is shocking in terms of 45 government inaction we would submit is shown in 46 the Nelson affidavit and that's at tab 6. That 47 affidavit was Exhibit 19 of -- in the proceedings.

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1 It's affidavit number 1 of Jon Nelson is we just 2 produce an excerpt from that and I specifically 3 want to turn you to -- there's a series of 4 paragraphs there outlining the evidence that was 5 brought forward about potential sexual 6 exploitation within the community. And in 7 paragraph 97 he states that in 20062007 a series 8 of considered the proposed charges of sexual 9 exploitation but concluded that the charges should 10 not be approved on the view there was no 11 substantial likelihood of conviction and that 12 conclusion one can assume came from the fact that 13 they felt that there weren't willing witnesses or 14 that the young women didn't want to come forward 15 and that it was not in the public interest to 16 prosecute and it's those latter words that I think 17 are quite troubling. Because when you have the 18 kind of evidence they have in terms of 19 pregnancies, age discrepancies evidence of 20 children marrying leaders in the community and to 21 think it's not in the public interest to prosecute 22 is quite shocking. 23 THE COURT: Well in fairness I wonder though that is 24 referring to the charge approval standard in 25 British Columbia which is a little different than 26 it it is in other provinces and it may be that the 27 not in the public interest is tied to lack of a 28 likely it be or substantially likelihood of 29 conviction. Minnesota I understand that that 30 could be but that standard. 31 THE COURT: Standing alone not in the public interest 32 Minnesota yes. 33 THE COURT: Makes your point but I wonder if we are 34 being completely fair to the Crowns that were 35 looking at the charge Minnesota well I would say 36 looking at the recitation of the evidence that 37 they had that I am being fair in saying that it is 38 shocking and I think the public would be shocked 39 by that conclusion and I understand the legal 40 standard and understand that we don't want to 41 pursue PRKs where we use state money and it 42 wouldn't be successful but I think that in some 43 cases especially in a case of child exploitation 44 there is an inherent public interest in 45 prosecuting and bringing to light these kinds of 46 charges, in fact, what I would submit is that the 47 government then, in fact, participated in keeping

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1 them quiet is my submission. 2 So there have been -- I mean the government 3 has failed and I'll get to why I think in terms of 4 our analytical approach why I think that has 5 happened. But I also want to go back to my first 6 point which is the suggestion by the challengers 7 to the provision that other laws are adequate to 8 address some of those harms and I think that 9 Mr. Reimer really addressed that quite well when 10 he said it is after the fact what we want to do is 11 prevent these harms to children and simply 12 prosecuting and punishing someone who has 13 perpetrated them is not sufficient and that the 14 government does have a clear role in preventing 15 and we would agree with that submission 16 completely. 17 The but we would also say that as submission 18 both by BC civil liberties association and the 19 Amicus that if we somehow had a coerced marriage 20 offence and said that that with an answer the bulk 21 of the concerns and we agree that that might be a 22 very desirable approach to address one of the 23 harms but we argue that the practice of polygamy 24 specifically in had this fundamentalist community 25 entails more systemic rights abuses then simply 26 forced marriage we have seen evidence of a lot of 27 other ways in which children's rights are abused 28 and that simply enacting something to deal with 29 forced marriage is not going to address the 30 problems. 31 And it's why we urge an analytic approach to 32 both the evidence and the charter argument that is 33 views children as rights holders. The BC civil 34 liberties and their submissions at paragraph 59 35 state in constitutional law the person is viewed 36 as a rights bearing agent Edmonton BUed with 37 dignity and you a Tony to make profoundly personal 38 decision in accordance with his other or her own 39 sense of right and good. And yes that's true but 40 I think when you apply that to children I mean I 41 think children are left out that equation. One we 42 have to look at the choices the ability to make 43 decisions slightly different and I will take you 44 to some of that the analysis ofO on that but also 45 I think that in the assertion of the rights here 46 have really just been focussing on the dulls and 47 the children as rights parers and persons with

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1 dignity have just dropped out of picture and 2 that's been -- it's our submission that has been 3 part of the reason why both the community because 4 of its approach that doesn't respect rights of 5 children and governments who are given the power 6 to protect children have failed to really do that 7 adequately. 8 In paragraphs 4 and 10 of our submissions and 9 I'll just take you to those because they sort of 10 highlight this analytical approach we STUTH you 11 take in terms of the rights based arguments in the 12 charter provisions. And that in paragraph 4 we 13 say that the infringement of children's rights in 14 polygamous communities are irreversible they 15 burden the children into adulthood and throughout 16 that is true lives the C KRTRC and the Asper Centr 17 argue these harms to children are infringements of 18 their human rights under the charter and 19 international law in particular the UN convention 20 on the rights of the child which Canada has 21 ratified the one treaty has more acceptance around 22 the world than any other. 23 They are not in other words simple harms to 24 childrens' interests all children are entitled to 25 full recognition of their rights and respect foyer 26 their inherent human nature dignity as maturing 27 individuals they are not just to be the resip YEPT 28 was the benefits that adults give to them. 29 In paragraph 10 we state that to provide a 30 robust NAMS of the impact on rights in this case 31 the evidence needs to be analysed in real estate 32 to the HAR TER interpreted by Canada's 33 international obligations with regards to the 34 rights of children and I would say in some SDPENT 35 it goes back to what I said about the BC civil 36 liberties quote there that much of the charter 37 rights on the surface seem to be more adult 38 oriented and what we have with the convention is a 39 way to interpret charter rights which we know 40 equally apply to children to apply in a way that 41 is more meaningful and more robust in terms of a 42 child's right to exercise their charter right or 43 ability to exercise their charter rights and the 44 state obligation to provide protections to those 45 rights. 46 So that the practices revealed in this case 47 demonstrate that children's right tos equality and

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1 certain fundamentally freedoms including their own 2 right to expression and religious freedom are 3 overlapping and interdid he pen dent as well as 4 grounded in the fundamental principles found at 5 the convention so those are the principles of the 6 best interest of the child, the right of child 7 participate and the due consideration of the 8 developmental stages and needs of children and the 9 evolving capacities approach is something that is 10 threaded throughout the UN convention on the 11 rights of the child and I'll take you to how I 12 would argue that the evolves capacities is really 13 important in this case. 14 I want to say that in terms of our submissions 15 through paragraphs I'm not going to go through 16 them in any detail put paragraphs 11 through 94 17 the abuses suffered by the children in these 18 communities and the coercive force of community on 19 children's development are linked in our analysis 20 to the rights of children so that you need to look 21 at them not just as child protection but we would 22 urge Your Lordship to also look at it as children 23 as rights bearers and each of those abuses entail 24 gross abuses of children's rights. 25 When analysing the charter arguments both with 26 respect to scope and justification then the harms 27 to children equal rights violations in our 28 submission. 29 And so we would go further than just to simply 30 say that children have been harmed to say that the 31 charter rights of children need to be interpreted 32 in light of and with the aid of the convention and 33 that what we have seen in this case and the 34 evidence in these particular communities is a 35 really harm to their rights. 36 So that takes us to the international law and 37 its importance in the analysis. And we cite at 38 tab 14 I'm not going to really take you to it I'll 39 make the reference is tab 14 in our book of 40 authorities is the analysis of international law 41 in van earth's chapter but I'm not going to go 42 through essentially what we argue is the proper 43 approach is a presumption of minimum protection. 44 So that when you take the UN convention on the 45 rise of the child is provided -- I mean the 46 charter provides at least that protection that you 47 would find in the convection so it's a minimal

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1 protection. 2 And that -- that's how you would interpret 3 children's charter rights as being imbued with the 4 convention rights as well. And it's -- it gives 5 that more robust sort of approach to children's 6 rights that I think is necessary. 7 And the cases that support this approach I 8 would submit again I'm not going to take you to 9 the specific passages but the AC case where 10 justice is a BE la turns to the convention in 11 terms of interpreting the best interests of the 12 child and children's rights in the context of 13 medical consent the DB case is at tab 8 of our 14 materials and even the Canadian foundation case 15 which ultimately upheld the physical punishment of 16 children it still the Court still looked to the 17 convention to interpret what, in fact, was 18 necessary and there's two aspect was the 19 convention that I think are really important in 20 this particular case. The first being this theme 21 of evolving capacities and I wish to take you 22 first to the materials at tab 15 of our book of 23 authorities so it's the thicker of the volumes and 24 this is a volume from Peter NOOUL and it's the 25 implementation handbook of the rights of the child 26 and it's commentary on it it's a synthesis of the 27 various general comments that the UN committee on 28 the rights of the child has made in terms of 29 various countries and first of all the first one 30 is in respect of article 3 which is the best 31 interests of the child. And you may recall that 32 the Canadian foundation case found that that was 33 not a principle of fundamental justice but that I 34 think was in an isolated case and in which law 35 was -- it was sought to be struck down the basis 36 it wasn't in the best interests of the child but 37 what I take you to this passage because it says 38 that if all actions and it's article 3 concerning 39 children whether undertaken by public or private 40 social welfare institutions courts of law 41 administrative bodies authority the best interests 42 of the child is to be a primary consideration. 43 And just following that pullout quote that's in 44 the right-hand column on page 36 is that the 45 wording of the principle indicates it's scope is 46 very wide going beyond state initiated actions to 47 private body private bodies too and embraces all

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1 actions concerning children as a group and I say 2 that what we have seen in terms of the actions of 3 this particular community in relation to children 4 has been a violation of that that there have been 5 a SOERS of actions that are clearly not in the 6 best interests of children. 7 The other -- the other aspect interest this 8 particular article and it's just a way of sort of 9 approaching the convention is found at page 77 and 10 that is the pullout quote there is to provide in a 11 manner consistent with the evolves capacities of 12 the child appropriate direction and guidance to 13 the in the exercise by the child of rights 14 recognized in the present convention. And the 15 evolving capacities theme is one that runs through 16 many of the articles in the convention and we have 17 reproduced the entire convention at the back of 18 our written submissions so all of the articles are 19 there. But using the consent of evolving capacity 20 and I'm reading below that quote has avoided the 21 need for the con VEPGS to set arbitrary age limits 22 or definitions of maturity tied to particular 23 issues. This is one of the conventions key 24 concepts and acknowledgment that children's 25 development towards independent adulthood must be 26 respecteded and promoted throughout childhood it's 27 linked to the requirement of article 12 that the 28 views of children should be given due weight the 29 concept is repeated in article 14 with respect to 30 parents and legal guardians providing direction to 31 the child in relation to the CHIERN's religion in 32 manner consistent capacities and the wording 33 emphasis the I would coo is the subject of the 34 rights recognized in the convention referring to 35 the exercise by the child of these rights. The 36 role of parents in relation to the capacities and 37 rights of babies and youngers children is 38 explained in another general comment but the point 39 being in this case we have and Mr. Olthuis will 40 talk further about the scope of the rights but we 41 have a clear sort of case in which we have 42 religious rights being exercised on behalf -- by 43 adults putting forward their views about what the 44 rights should be without acknowledging those 45 evolves capacities of children. 46 And it links directly to some of the evidence 47 in particular we -- I mean there's some references

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1 within one of the general comments but in respect 2 of Dr. Beall's evidence in particular and that's 3 found in our compendium again done an excerpt and 4 I apologize for flipping through various volumes 5 but at tab 10 we -- and that is, in fact, I 6 believe Exhibit number 1 in the proceedings and 7 this is the affidavit of Dr. Lawrence Beall and in 8 particular I refer to paragraphs 20 and I'm not 9 going to read them all because I think I'll just 10 summarize but 20 through 31 is where he really 11 addresses how in particular with adolescent 12 development how the community has really not -- 13 has really harmed and stunted that sort of 14 development and has not permitted children to 15 exercise their own views and wishes or be somehow 16 normal -- sort of engaged in sort of normal 17 development because of the practices of that 18 community. 19 And I just make note we don't have it in the 20 materials but you'll recall that Lori Beaman's 21 evidence and professor Beaman's evidence was 22 around agency and choice and she clearly said her 23 views around that didn't apply to children that 24 there was -- there's a different approach and we 25 would say what we is have seen in the practices in 26 this community is a refusal and an oppression or 27 suppression of choice by children and it goes 28 beyond just forced marriage. It goes to 29 educational opportunities, it goes to work 30 opportunities and as well as other kinds of 31 relationships. 32 So those are the sort of general themes that 33 come out of the articles but the international law 34 is relevant we would say in two ways and that one 35 and I have you already talked about the rights in 36 respect to the scope of limitations and also in 37 respect of section 7 principles of fundamental 38 justice and so that the international law has been 39 held to be within those principles but secondly as 40 the basis for justified limits on adults rights so 41 under the section 1 analysis as well. And we 42 would say that the violations we have seen of 43 children's rights are structurally linked to the 44 polygamous community and polygamy practice in 45 general and that has been consistently 46 demonstrated in the evidence in this case. It's 47 our submission when there are no choices when

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1 religion institutions or practices systematically 2 pry slate rights and deprive individuals in this 3 case children of their choices that Society Acting 4 through the state have grounds intervene and it's 5 our submission that given the evidence and given 6 the practices that we have seen that have violated 7 children's rights it's imperative on the 8 government to intervene and two final points in 9 relation to that and one is in respect of 10 referring to paragraph 85 of our submissions in 11 which we quote from the BR case. And this is part 12 of one of the minority judgments there were a 13 number of conflicting judgments but this is the 14 one of yak bow CHI and major that the assumption 15 that she in an in this case SF of the same RM as 16 they talking about an infant. And hence cannot 17 submit to blood transfusion yet she that has never 18 expressed any agreement with the nor for the 19 matter with any religion assuming any such 20 agreement would be effective. There is thus an 21 impingement on shoo in a's freedom of conscious 22 which arguably livelong enough to make one's own 23 reasoned choice about the religion one wishes to 24 follow as well a the right no not to hold a 25 religious believe and that was a very dramatic 26 sort of case in which the child's live was at 27 stake but what I would argue is and what we argue 28 is when you have a community that stunt permit 29 through the education system any kind of choice or 30 just in terms of interaction outside the insularty 31 of that community brings us westbound that kind of 32 passage the children as they get tos adolescents 33 are not in a position where they can make choices 34 and the final point as just in terms of the 35 state's obligation I just want to finish with 36 article 19 which I think is the -- of the 37 convention. 38 And it's at page 49 of our submissions. 39 And that it's -- it says that State's parties 40 shall take all appropriate length slay tiff and 41 social and educational measures to protect the 42 child from all forms of physical or mental 43 violence injury or abuse neglect or maltreatment 44 or exploitation including sexual abuse while in 45 the care of parents, legal guardians or any other 46 person who has the care of the child and that puts 47 upon the state a very STROK obligation it isn't

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1 sufficient to just legislate child protection 2 litigation it needs to be enforced there needs to 3 be education and needs to be through the education 4 system as we saw with the evidence of the 5 inspections that that issue about reporting child 6 abuse they had a policy but THO one ever asked 7 whether they followed it. There were no reports 8 and our -- I'm not going to go through our 9 submissions but I think we very carefully set out 10 the ways in which those -- the children have 11 been -- children's rights have been violated 12 without -- within this polygamous community and so 13 I will now turn over to Mr. Olthuis 14 THE COURT: Thank you. 15 MR. OLTHUIS: My Lord, I've got three issues that I'll 16 intend to address this afternoon. I do think I'll 17 probably be done in half an hour can have thebly. 18 I who. 19 THE COURT: Thank you. 20 MR. OLTHUIS: The first issue regards the scope of 21 charter rights and particularly as concerns as 22 Ms. Milne indicate the ostensible or alleged 23 protection for conduct risk to the physical or 24 psychological integrity of others, the second 25 issue I'll been addressing is again as indicated 26 one manner in which we say that section 293 is 27 inconsistent with the charter. And that is its 28 application of criminal sanctions against a minor. 29 And then thirdly, I would like to address the 30 manner in which we say this court should address 31 the questions that were posed in the order in 32 council. And all three of these issues are DRAEFD 33 in our written submissions I wish to ex-PAPD on 34 what we say in the written submissions, My Lord. 35 THE COURT: Thank you. 36 MR. OLTHUIS: Turn to the first topic then the scope of 37 charter rights. And I'm at page 24 of our written 38 submissions, My Lord. 39 We say that charter rights are themselves 40 limited before we need to get to a section 1 41 analysis and I'll come to further discussion on 42 that topic but the language we use in paragraph 7 43 of our written submissions we say in the third 44 line the better view is that insofar as the 45 practice of religious belief asks we would 46 ex-tepid that to all other guaranteeded rights and 47 freedoms under the charge a TER in so FAR as this

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1 practices infringe other individual security of 2 the person in other words insofar as they 3 constitute a material interference with physical 4 or psychological integrity that conduct is not 5 protected and receives no protection under our 6 constitution. 7 We do site the Morgan taller case My Lord. I 8 don't want to go to it but I do want to indicate 9 for the court that the language that we use 10 material interference with physical or 11 psychological integrity ask come from that case. 12 It was raised as a component of security 13 foreperson by Justice Dickson. Chief Justice 14 Dickson justice bets and justice Wilson. 15 The point that we make is that no conduct that 16 would infringe on other individual security of a 17 person will itself receive constitutional 18 protection and Your Lordship asked Mr. Jones 19 yesterday essentially what's the practical effect 20 of situating the analysis at the breach of 21 substantive right rather than at the section 1 22 stage and we say two things in response to that, 23 My Lord. Firstly we say the you shall of onus is 24 itself critical. Both legally and as a matter of 25 efficient use of judicial resources. And to use 26 an example from the section # 2A religious freedom 27 context in that context of course it's for the 28 claimant to identify in accordance with the 29 passage from a.m. sue LON Mr. Jones took you to 30 it's for the claimant to identify and find the 31 practice that has the next outside to religious 32 and call are ostensibly protected conduct. And we 33 say where that conduct is per se harmful and here 34 I would refer to Mr. Jones' example of terrorist 35 activities carried out in the name of religious 36 believe where conduct is per se harmful we say 37 would be a gross misuse of court and state 38 resources to engaining in a section 1 analysis 39 even to broach that analysis. 40 We say as well and this is equally important 41 in our view that there's a positive feedback 42 effect in the in forcing the claimant to go 43 through the process of identifying a right in this 44 manner. It causes some form of critical refleck 45 hundred and in the case of children it would cause 46 critical reflection on behalf the adults they are 47 upholding that your duties to children in society.

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1 And we say that the analog to our approach 2 under section 2A and the other sections of the 3 charter is really what the court has said the 4 Supreme Court has consistently said about section 5 2B of course the jurisprudence under freedom of 6 expression has been very clear it's the widest 7 scope imaginable. The constitution protects both 8 the content and form of expression but there is 9 consistently been in all of the jurisprudence 10 since the adoption of the charter a carve out 11 referenced in the Supreme Court of Canada 12 jurisprudence and of course that is where the form 13 of the expression is one of physical violence. It 14 will not be protected and there's no need to go to 15 section 1. We say the same reasons for which that 16 carve out is made supports the recognition of 17 carveouts in other contexts. 18 But secondly, our second response as to why it 19 matters to do the analysis at the right stage 20 rather than section 1 is that there's a symbolic 21 but very very meaningful importance as well and in 22 that respect we must be alive in our submission to 23 the particular role of the constitution and what 24 role it plays in the life of our country. We say 25 the constitution and of course most appreciably 26 the charter serve as a statement of who we are and 27 what values our democratic society holds so 28 fundamental as healeded from state interference. 29 In that connection and it's a theme I think that 30 runs throughout our submissions on this point 31 there's a real value in upholding a vision of the 32 charter that conducts physical psychological falls 33 outside the scope of constitution protection. We 34 say the symbolic concerns ought not to be and 35 cannot be easily dismissed we say the danger of 36 treating this issue as merely academic the rights 37 of the others get glossed over, ignored or treated 38 as subsidiary and Ms. Milne has taken you to our 39 submissions in that regard but we submit that has 40 occurred historically with respect to children's 41 rights and creates invidious and internationally. 42 Now, this leads to the question as to whether Your 43 Lordship is bound by higher authority to conduct 44 the analysis of the section 1 justificatory stage 45 rather than at the substantive breach and you say 46 with all due respect we're unwilling to defer to 47 professor HOG on this topic. We say a careful

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1 reading of the Supreme Court case law indicates 2 there is no binding authority that would force 3 Your Lordship to engage in a balancing of 4 religious freedoms in section, in fact, there is 5 scope to limit the freedom of religion at the 6 substantive breach stage. 7 We pick this up at paragraph 71 and 72 of our 8 written submission but if I may summarize the we 9 say the PROOEK of Canada has never faced yet a 10 situation in which an asserted religious practice 11 is per se harmful. The balcony structures in a.m. 12 sue LAN were not themselves dangerous Mr. Mull at 13 that any did not arrive in kerpan as a weapon and 14 indeed I won't take Your Lordship there but if one 15 look it is at the analysis that in case and I 16 would cite particularly paragraph # 7 you see the 17 court per kerpans were not inherently dangerous. 18 At paragraph 29 of that same decision the court 19 noted that it did it not -- or was not facing a 20 situation in which it would have to reconcile two 21 constitutional rights as it would have for 22 instance Mr. Musoneos tan's religion practice 23 per se constituted an interference with other 24 individuals and security of the person again we 25 say on the facts that are before Your Lordship in 26 this case the assertions of religious freedom on 27 behalf of polygamists in this case do, in fact, 28 occasion such a direct risk of harm if not harm 29 itself. 30 I da want to take -- Ms. Milne has taken you 31 to this case in a different context but I want to 32 take I don't you were to a BR case and paragraph 33 733 of our submissions. This was a blood 34 transfusion case and we've relied on the judgment 35 of Mr. Justice Yak BU CHI and mayor Ms. Milne has 36 pointed out this was not the "majority" judgment 37 there was a series of judgments Justice La Forest 38 commanded a MRURty of judges hipped his view that 39 the balancing in that case was under section 1 40 however in our submission the dispute was really 41 one of fact in that case between the ma an orty 42 and minority judges as to where the NAMS should 43 occur. In fact, if we turn, My Lord, to tab 2 of 44 our condenseded book we see a lengthier extract 45 from BR and the very first page of that at 46 paragraph 261 we see reference by this is from the 47 judgment of Mr. Yak BU CHI and justice major and

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1 for for instance reference this is tab 8 of volume 2 1 of the joint book is where we took it from. 3 But at paragraph 216 in the third line down 4 towards the right-hand side we see justice yak BU 5 CHI and hay MR at the case at bar she in an a 6 believed to be serious in was not sufficiently 7 urgent to prevent the children's aid society from 8 seeking complying with procedural fundamental 9 justice so that case was on just La Forest's 10 reasoning not one in which the religious -- the 11 indication of religious freedom on behalf of the 12 participates necessarily caused an immediate risk 13 of harm so his analysis was different with you we 14 say it reallys with a dispute of fact there was no 15 dispute with the principle of law that justice yak 16 BU CHI and major set out. 17 And as I'll show this PAIJ was SKWEMENTly 18 cited with approval and the TRIN anyty western 19 case. If I can turn to our submission again 20 My Lord at page 25 now the second paragraph of the 21 quote from the judgment and I will read it it. 22 Judges yakJ ambit of freedom of expression so are 23 there limits to the scope of section 2A especially 24 so when this provision was called upon to protect 25 activity that threatens the physical or 26 psychological well being of others. In other 27 words although the freedom of belief may be broad 28 the freedom to act upon those believes is 29 considerably narrower and is it is the later 30 freedom at issue in this case and it takes to 31 another issue that arose in Mr. Jones's 32 submissions we say there is a distinction between 33 religious believe and religious practice. 34 Religious practice does have a narrower scope 35 because it's at the stage of practice when there 36 may be an INTRIFRNS of course with the physical or 37 psychological integrity of another person. 38 And as we indicate below that quote this was 39 actually picked up and cited by the majority of 40 the court in Trinity western. It remains we say a 41 principle of good law. 42 So although I focussed on section 2A My Lord 43 we say this same analysis applies throughout the 44 various charter rights that have been thrown up. 45 I will say then in the present case for the 46 reasons we've out line already in our written 47 submissions in oral submissions already the

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1 sustained practice of polygamy in a religious and 2 strongly could manual setting causes direct and 3 egregious harm to children such as the right 4 including the rights of the security of person are 5 violated and we say in this circumstance that the 6 constitution in the very symbolic level we 7 discussed submit that analysis must take place at 8 the substantive breach level. 9 If I can turn then to my second issue with 10 issue which is the section of the inconsistency 11 with the constitution as it applies to a minor 12 accused. And this topic is actually picked up at 13 the end of the written submissions at paragraph 14 117 and following. But it does make sense I think 15 to address it now. 16 The case My Lord this we rely most heavily on 17 is the DB case and I won't GEP take Your Lordship 18 to that but that was the challenge to the reverse 19 onus scheme under the youth criminal justice Act 20 and there were a series of presumptive offences 21 and youth was convicted of them then an adult 22 sentence would be essentially the default general 23 the onus would shift the court said in that case 24 ands obviously a print of imprisonmentment are are 25 sufficient to young persons under section 7 the 26 importance of DB and we've got the quote at 27 paragraph 120 of our submissions is that this case 28 recognizes that the presumption of diminished 29 moral culpability is a principle of fundamental 30 justice for the purposes of section 7. And we say 31 at paragraph 121 that's supported by the 32 convention on the rights of the child if and 33 particularly article 40 (1) and we say that the 34 principle in DB although that was a sentencing 35 case applies equally strongly in the present case 36 when it comes to the application of a substantive 37 OCHS. We say it's beyond question that the 38 evidence in this reference shows that minors who 39 were parties to polygamy or polygamous union are 40 victims. They're victims not criminals. To the 41 extent that section 293 on its face would subject 42 minors to criminal sanctions including the risk of 43 imprisonmentment in a manner that is inconsistent 44 with the principle of fundamental justice being 45 the reduced moral culpability section 293 is 46 inconsistent with children's rights and therefore 47 of no force or effect.

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1 Now, Mr. Jones or the Attorney General deals 2 with this issue at paragraphs 321 and following of 3 his written submission under the heading 4 criminalization of victims. I TOENT want to go 5 there My Lord but Mr. Jones could haved this topic 6 yesterday and essentially said if I have his 7 submissions correctly we can rely upon the 8 commonsense of judges and prosecutors to ensure 9 that the section is not applied to minors. And 10 what I say with respect is that this is 11 insufficient as a matter of law and it's no answer 12 to the constitution infirmity FRAG firstly with 13 respect the question is this not about the 14 judiciary the harms to children's rights occurs at 15 the time of the charge and over the course of the 16 trial and an acquittal will provide so last and 17 acquittal will DPARN tea imprisonment is off the 18 table but that would come too late. We say if 19 will his any prospect the Crown could lay charges 20 in the absence of a declaration of partial 21 invalidity from this had court and there is such a 22 prospect the minors cannot with respect rely upon 23 the good graces of the Crown. 24 And it's for that reason I passed up the about 25 anyone case to Your Lordship. I don't want to go 26 into it in great length. It is a very very 27 different context in which that case arose. It's 28 a case involving the a challenge to the Criminal 29 Code's former scheme for challenging jurors the 30 Crown at one point had had had far more peremptory 31 challenges than did the accused the challenge was 32 brought to those provisions of the code and if we 33 see justice Cory's judgment and I'm at page 12 of 34 59 My Lord, and I'll just for Your Lordship's 35 reference I did take a look he it the library over 36 the lunch SCOMBRAEK this is at pages 102 and 1 O # 37 the Supreme Court reports if that's of any 38 assistance. The second to last full paragraph 39 here justice Cory says it's suggested as an 40 officer of the court would never act unfairly in 41 the selection of a jury and he goes on to say yet 42 the ex-Edmonton community pressure that just such 43 a step might be taken. 44 And then continuing with his analysis or his 45 discussion of this argument over on the next page, 46 My Lord, the second full paragraph and this you 47 now at pages 103 and 104 of the Supreme Court

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1 reports he states NFTly it would seem WLFR power 2 that can be used abusively then on occasion it 3 will indeed be used abusively the protection of 4 basic rights should not be dependent on the 5 reliance on the continue exemplify conduct on the 6 Crown something impossible it to Monday orator 7 control. So obviously this is not about 8 criticizing the Crown O suggesting will be any 9 deliberate untoward conduct but the point simply 10 is we cannot say as a matter of constitutional law 11 relying on the good graces of the Crown is 12 sufficient in circumstances like this. 13 We say that if there's any prospect the Crown 14 could lay charges there's always the chance they 15 will and the section 7 rights of children cannot 16 be trumped by Crown discretion. 17 If I could turn then to the third and last 18 topic I was hoping to address and that the how we 19 suggest Your Lordship should answer the questions 20 poseded in the order in council I'm not flipping 21 back in my written argument to paragraphs 106 and 22 following. Our focus in this regard My Lord is on 23 the second question that you're asked to 24 determine. And I'll read thatment we've got that 25 set out at paragraph 1 # 0 #. What are the 26 necessariment wills of the offence many section # 27 293 of the Criminal Code of AVMENT and if we stop 28 there then I say in my submission this is simply 29 part of the interpret tiff exercise that must 30 proceed Your Lordship's determination of 31 constitutional validity. But we go on. The 32 question doesn't end there. The second sentence 33 then says without limiting this question does 34 section 293 require the polygamy or conjugal union 35 in question involved a minor or occurred in a 36 context of dependence exploitation abuse of 37 authority. Gross imbalance of power and undue 38 influence? And that second sentence of course 39 says it's expressly it's not limiting the question 40 but, in fact, my expands upon and calls upon the 41 court to play a much more active role than does 42 the first sentence. 43 The gist of our submission is really twofold. 44 We say that firstly the court has discretion to 45 decline to answer that question or that 46 amplification of the question and secondly we say 47 it's appropriate in this case that the court do

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1 decline. Now, we acknowledge that no doubt there 2 are numerous cases in which courts followed other 3 approaches we say in these particular 4 circumstances the best approach is to avoid 5 entering into the sort of for lack of a better 6 term the judicial legislation called for in the 7 second sentence of two 2. Why we say that's the 8 best approach why it's the most prudent to decline 9 four reasons at 11 of our written submissions and 10 I would like to just go through those briefly I 11 would amplify that by saying it respects the 12 reSPUFRPGS of constitutionality that's what it 13 really comes down to My Lord is that we have a 14 provision here that's presumed constitutional it's 15 for the challengers to show it's unconstitutional. 16 Secondly we say with respect the primacy of the 17 constitution. And in that report if I could refer 18 Your Lordship back to paragraph 11 we SPLAP what 19 it is we really mean there it's section 52 of the 20 STUKS act deare TLARs the constitution is Supreme 21 Court. It also states laws inconsistent with the 22 constitution are of no force or effect and we 23 quote to the extent of the inconsistency. It is 24 it not say that laws that are partially 25 inconsistent are to be stricken out and it quite 26 appropriately preserves the presumption of 27 constitutionality that I discussed just a moment 28 ago. So we say by the text of section 52 (1) it's 29 the inconsistency that is important when it comes 30 to constitution informties. It's not a question 31 of redrafting a provision so that it is 32 inconformity with the suffusion and again we 33 acknowledge no doubt there are cases where the 34 Court has done otherwise. 35 But we say in this particular circumstance for 36 reasons I'm going to come to that's inappropriate. 37 Ask the point there simply is that there would be 38 guidance to the executive and law enforcement 39 officials to proceed with charges under section 40 293. FOURLTly we say it would upheld article 33 41 of the convention no one is taking you to that and 42 uphold as well the obligation if pair mown and I 43 won't repeat our sub mugses there. I would add 44 My Lord a fifth point to paragraph 113 and this is 45 again one that we had raised earlier in our 46 submissions but approaching this more -- this 47 question in the more small C conservative way that

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1 we URNG upon Your Lordship would guard against 2 parliamentary inactivity and we say that's a real 3 concern in light of the KURPT series of minority 4 governments leaving children unprotected in the 5 event Parliament is unable to act or come to 6 agreement as to the proper scope of their 7 replacement provision is simply inappropriate in 8 the circumstance and that really My Lord is the 9 reason why we say it's inappropriate in the 10 circumstance. It's -- it's far too dangerous to 11 give a suspended declaration of invalidity that 12 may involve us having to provision what so forth 13 which would obviously just continue and exacerbate 14 the problems with lack of enforcement that a have 15 existed THUSs thus far if there is no law there 16 would be no enforcement and we say there must be a 17 law and are to the reasons Mr. Reimer has provided 18 earlier today. 19 So in the absence of any questions My Lord 20 those are my questions. 21 THE COURT: Thank you very much. Mr. Ma TAS how long 22 do you think you'll be? Mat mat well, I'm going 23 to conform to the rest of the time available. I 24 would suggest either -- well, if I would suggest 25 if it's acceptable to everybody here that we don't 26 take a break and we finish a bit earlier but 27 otherwise we can take a break and I'll finish 28 before closing time. 29 THE COURT: Okay. Let's take 10 minutes. 30 THE REGISTRAR: Order in court. Court is adjourned for 31 the afternoon recess. 32 33 (AFTERNOON RECESS) 34 35 THE CLERK: Order in court. . 36 THE COURT: Thank you Mr. Ma TAS. Massachusetts thank 37 you. I'm basically going to stick with my written 38 closing submissions but they have been elaborated 39 a bit and I have given the elaboration to the 40 reporter ask I will send it around to everybody 41 afterwards. 42 The focus of beyond boarders is the 43 international sexual exploitation of children 44 beyond borders OM about as the movement of both 45 adults and children across international boarders 46 where the purpose of ex-the prohis serves the 47 purpose of combatting this particular wrong. The

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1 legalization of polygamy makes the practice of 2 this abuse child sexual abuse more likely with 3 polygamy in place this sort of abuse becomes more 4 difficult to combat and to prevent. 5 From the perspective of the intervener one 6 piece of striking evidence was showed that 7 children had been moved across the body from 8 polygamy community in Canada to polygamous 9 community for the purpose of polygamous marriages 10 this sort of event sits squarely within the 11 mandate of beyond boarders the possibility of 12 sexual abuse of children across international 13 boarders. Law enforcement officials investigate 14 and TLI however the possibility of prosecution for 15 violations of child sex sexual abuse does THOT 16 allay concerns we have. Children can be moved 17 across international for sex in situations where 18 approximate becomes difficult if not impossible. 19 INTUSHLly lie SAGS of child sexual abuse 20 complicates prosecutions since we are doing with 21 two sets of laws, two sets of courts two sets of 22 enforcement officials more over either the country 23 of ex-part or destination may have effective 24 capacity to remedy breaches of their laws. In 25 many if not most countries the scope of the 26 laws,ed jurisdiction of the is territorial only. 27 With the best will in the world international 28 enforcement is difficult. CHIELS sexual abuse 29 with with an international dimension joins 30 increased difficulties with decreased will. When 31 either the perpetrator or the victim is absent 32 from the jurisdiction the motivation the system 33 has to deal with the crime is less. 34 It is all too cease as I when there's more 35 than the solution to the problem rests with the 36 other jurisdiction. EFTS to achieve justicetor 37 child sexual abuse within international dimension 38 often end up in buck passing. Crimes involving 39 children are particularly problematic because the 40 victims cannot speak for themselves. Taken out of 41 their protective environment there's often no one 42 who knows them to the place they are transported 43 to speak for them. These considerations mean that 44 in protecting children against cross boarder 45 sexual abuse a multi dimensional approach is 46 needed there is no one resolves problem need to be 47 invoked.

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1 As our opening submissions attempts to lay 2 throughouts sexual abuse both fate at the same 3 times the crime and makes it order to key TEKT and 4 report. There's been much evidence to that effect 5 before this court. To summarized in other 6 submissions. Approximate for child sexual abuse 7 is one answer to this but it is not the only 8 answer. Any environment which facilitates the 9 crime and discourages its detection and reporting 10 has to be a matter of concern. Protecting 11 children from cross boarder sexual abuse is one 12 justification for the current Canadian polygamy 13 law. Its a justification amongst others that 14 makes the law constitutional. 15 I'm then going to talk about something very 16 SNOIL what you just heard from my proceed is he 17 sore about finding violations or no violations 18 within the charter right section themselves rather 19 than section 1. 20 The intervene nor submits this court should 21 not regular gait the justification for the 22 prohibition of polygamy to a section 1 analysis it 23 a determination whether the polygamy legislation 24 is a reasonable LOOIKS on the vie it's position of 25 the intervene nor in the Criminal Code does not 26 violate any charter rights because each right has 27 to be considered in the context of all rights. 28 And there are many cases to that effect. I quote 29 here dolphin delivery where the Supreme Court of 30 Canada said that freedom of expression would not 31 violence or acts of violence. I'll give you an 32 example suppose someone justifies murder by claim 33 the killing was done out of religion belief. That 34 claim need not be addressed under section 1 of the 35 charter. The claim that prosecution for murder in 36 the circumstance violates freedom of religion is 37 not established. 38 The reason that there's no an a defence to 39 murder is the human rights have to be considered 40 as a whole. When Canada says by looking at only 41 one human right in isolation. The ultimate test 42 for rights is the whole human rights package the 43 worth and dignity of the whole human being. Each 44 human right captures one as PAEKT of that package 45 buts is the whole that matters just no the 46 component parts. 47 It makes as much sense to look at individual

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1 human rights in isolation without an as to look at 2 individual with regarded human rights is itself a 3 body a Corpus of standards. To promote the health 4 of the human body must respect the health of each 5 part. Yet it would nonsense to detap at the same 6 time a person in order to infingers to respect 7 human WIETs a must respect individual human rights 8 yet does the no the respect human rights as a 9 whole by tolerates one violation in order to 10 prevent another. 11 Murder violates the right to life on balance 12 murder violates the right to life for for rights 13 to freedom of religion of a person who kills out 14 of religious belief. There's better respect as a 15 whole for human rights by prohibiting murder 16 inflicted out of religious belief than by alo 17 allowing murder inflicted out of residential 18 belief. 19 The I then went to move to talking about the 20 rights of children. Looking it the submissions 21 filed one can see that there's been a focus on the 22 claim charter rights of the MRIs and whether the 23 criminal prohibition the prohibition Criminal Code 24 breaches their charter rights. The reference 25 question though does not refer specifically to the 26 rights of the replying list it refers to charter 27 rights as large the encompass the charter rights 28 of children as well as the charter rights of the 29 polygamists the is not whether the polygamy 30 prohibition is consistent with the charter rights 31 of the polygamists but I should say here this is 32 not in what I sent you before so there are some 33 variations. 34 Is not whether the polygamy promix is 35 consistent with the charter rights of the 36 polygamist but whether the polygamy prohibition is 37 consistent with the charter. Without reference to 38 particular individuals or groups. 39 To answer that question the Charter of Rights 40 of children must be consider canned and not just 41 the charter rights of the polygamists in answering 42 the broad question posed by the reference regard 43 must be had to the guarantee of security of the 44 person set out in section 7 of the charter as it 45 impacts on children. 46 It goes without saying that sexual abuse of 47 children violates security of the person of

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1 children when children are INTUSZed as a result of 2 state action or inaction there's section 7 charter 3 rights of security of the person is violated. The 4 right to security of the person discontinues 5 defence threats and risks of violation of security 6 of the person as well as actual violations of 7 security of the person. Madam better that Wilson 8 in the case of Singh in this the Supreme Court of 9 Canada wrote security of the person must encompass 10 freedom from the threat of physical punishment or 11 suffering as well as freedom from such punishment 12 itself. 13 And I have the citation in the material I'll 14 send you. 15 The risk or threat of sexual abuse of children 16 is a violation of section rights of children. 17 This is so whether children are sexual abused or 18 not. Moreover the charter is engaged even though 19 the ultimate violators are non-State a being TORS 20 the fact that the SWUSer is not the state does not 21 prevent the CHAER TER from being enGAMGed as long 22 as the state action increases the risk or threat 23 of that abuse. DEP ry characterization of a right 24 which the state now give can make a breach of 25 STURT of the person as long as the deprivation I 26 increases a risk of the violation of the person 27 even by an non-state actor and that indeed was 28 somewhat the case of Singh where the threatened 29 abuse SER or violator was foreign state or 30 non-state being an are to it is a refugee case and 31 the issue had to do with refugee rights. 32 And I go into some detail about drawing a 33 parallel between the Singh case and this case in 34 the written material. I will skip over it here. 35 The charter of course binds not just 36 legislatures and particle ams it also binds the 37 courts. The courts by their actions can can 38 either violate or respect the charter. The 39 criminal law prohibits polygamy is a right to 40 security of the person children now have because 41 it decrease SZ the threat of child sexual abuse. 42 Finding the polygamy law unconstitutional would 43 mean deriving children of that right. A finding 44 of unconstitutionality would be a DEP ryation VAGS 45 by this court of the rights children now have to 46 security can of the person. This Court by the 47 very act of finding the polygamy law

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1 unconstitutional would violate the right to 2 execute are the person of children. The question 3 then becomes whether that deprivation would accord 4 with or violate the principles of fundamental 5 justice. 6 Such principles are are to be found in the at 7 the at the times off BC motor vehicle case Mr. 8 Justice la MER articulated two of the basis tenets 9 are protection of children and harm of prevention 10 and there are a wealth of example ands give some 11 examples in the written material but it's easy to 12 think of many such examples. 13 And I'm an immigration and refugee lawyer so I 14 give some examples from that field but I'm sure 15 one can think of examples from almost any field. 16 Violating the principles of protection of 17 children or harm protection means violating the 18 principles of fundamental justice. Protecting 19 children against threats of harm does not accord 20 with the principles of fundamental justice. Now, 21 the principles of freedom of expression or belief 22 or association the right to liberty and security 23 of the person and the right to equality all of 24 which are claimed in various guises by the counsel 25 for polygamy monogamists are principles of JNL 26 fuss gist. Invalidation on the basis that the 27 legislation violates any particular rights of the 28 polygamy monogamists would mean that that 29 violation occurred in accordance with those 30 particular principles of fundamental justice which 31 for which they claim protection 32 Nonetheless section 7 does not allow a 33 violation of the right of security on the person 34 on the basis that the violation incurred occurred 35 in conformity with some but not all principles of 36 fundamental justice. On the contrary, the 37 violation in order to pass section 7 muster has to 38 occur in conformity with all of the principles of 39 fundamental justice. A violation of the right to 40 security of the person which occurs but which is 41 not in accordance with one or some of the 42 principles of fundamental justice run afoul of 43 section # 6 of the charter. The very act by this 44 court of invalidating the PRIG prohibition then 45 would in the respectful submission of the 46 intervene nor violate section 76 the charter. 47 Then let me get about a being to this issue of

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1 whether we actually need to go to section 1 or how 2 or when we get to section 1. Let us assume 3 contrary to what I've just argued that the 4 polygamy law violates the charter of right of the 5 polygamy monogamists freedom of expression freedom 6 of belief as I say I've argued the contrary but 7 let's assume I'm wrong on that. 8 Let us also assume as I just argued that 9 invalidating the polygamy MI law violates their 10 charter rights of children. Let's say you accept 11 that argue argument and in a section do we move to 12 section 1 of the charter. I would suggest not. 13 Section 1 is meant to deal with non-charter 14 limitations on the violation of the charter. We 15 do not get into section 1 unless the charter is 16 violated as a whole. The section 1 reference to 17 the rights and freedoms set out in the charter 18 refers to the whole are change TER not the 19 individual bits and pieces. It would be a 20 misreading of section 1 to read it to say the 21 Canadian Charter of Rights and freedoms COMBARN 22 teas each individual right and freedom set out in 23 it subject to only such reasonable limits 24 prescribed by law as can be demonstrably justified 25 in a free and democratic society. Rather it must 26 be read that the whole collection of rights and 27 freedoms set OT out in had the subject to only 28 reasonable limits can be prescribed by law and so 29 on. 30 Put another way the phrase the reasonable 31 limits prescribed by law refers to limits 32 prescribed by non-charter law. Not limits 33 prescribed by charter law. Section 1 cannot be 34 read to say the Canadian Charter of Rights and 35 freedoms guarantees each individual right and 36 freedom set out in it subject only to such 37 reasonable limits as are prescribed by other 38 individual rights and freedoms set out in the 39 charter. 40 Reading the CHAERer require courts to 41 determine whether individual charter in a free and 42 democratic society yet that determination has 43 already been made by the charter it he have self. 44 All the charter rights have already been 45 determined by the charter itself to be 46 demonstrably justified in a free and democratic 47 society so the reasonable limits prescribed by law

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1 cannot be someone charter right the violation of 2 which potentially conflicts with the violation of 3 another charter. So we don't use charter one on 4 this hypothetical situation where we've deposit 5 violations of both rights the rights of children 6 and the rights of adults. The rights of the 7 polygamy monogamists and the rights of the child 8 so how do we deal with that a. 9 It's our position that finding a charter 10 violation of the rights polygamy monogamists and 11 there's a whole litany of them that has been 12 suggested is not sufficient to bring the court to 13 section 1 and consideration of reasonable limits 14 of the rights violated there must be at least one 15 additional finding. Either there must be a 16 finding that invalidating the polygamy law would 17 not violate the guarantee of security of person of 18 children found in section 7 of the charter. 19 Alternatively there would have to be a finding if 20 the charter guarantee of security to the children 21 is violated by invalidates the polygamy law that 22 the violation of the charter rights of the 23 polygamy monogamist outweighs the charter rights 24 of children. Absent at least one of these 25 findings that children's rights are not violated 26 or the rights of the polygamists outweighs the 27 rights of children section 1 reasonable limits 28 analysis simply is does not arise. 29 Before we get to section 1 we must determine 30 what the charter as a whole says. The balancing 31 off of one are change TER right against another is 32 an exercise prior to entry to section 1. In this 33 balancing violation of the right to security of 34 the person of children has in our review to weigh 35 more heavily in the balance than the rights of 36 freedom of expression, religion or association or 37 security of the person or liberty or equality of 38 the polygamists. The convention on the rights of 39 the child all actions concerning children the best 40 interests of the child shall be a primary 41 consideration. 42 That provision MEENSZ that in a contest 43 between adults SXN the one hand for the various 44 rights which I listed before and children on the 45 other hand for the right to be protected against 46 sexual abuse the rights of children have to be 47 given primacy.

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1 The defenders of polygamy of course do not 2 claim a right to child sexual abuse yet they do 3 claim a right it an institution which both 4 facility TATSs child abuse and makes it harder to 5 did he detect and report. The intervene nor 6 supports efforts it prevent precautions against 7 child sexual abuse half to take priority over 8 tolerance of polygamy and the rely savings the 9 polygamists. 10 Now, there are many statements many the 11 jurisprudence and indeed in the material before 12 this court saying that it's wrong to have a 13 hierarchical approach to rights and in the 14 material here I quote a statement from damage 15 anyway the Supreme Court of KAT in damage anyway 16 to that effect. So I'm well aware of that 17 principle. But one has to distinguish though 18 between a hierarchical approach to rights and a 19 hierarchical approach to victims. The intervene 20 nor does THOT claim that charter section # 2 21 rights should be given presence over any of the 22 rights claimed by the counsel on the other side 23 right to freedom of expression or what if. We 24 rather claim that the rights of children should be 25 given precedence over the rights of adults. 26 There's nothing in the charter jurisprudence to 27 counter that suggestion. 28 The convention on the rights of the child also 29 provides that state party shall take all 30 appropriate measures to protect the child from 31 sexual abuse and such protective measures should 32 include as appropriate forms of prevention 33 including judicial involvement. 34 The Canadian Criminal Code prohibition against 35 polygamy is an appropriate legislative measure to 36 protect the child from sexual abuse. The 37 prohibition polygamy is the PREK it tiff measure 38 which is the form of prevention. 39 Prosecution for the offence of child sexual 40 abuse an I loan even if every perpetrator was 41 swiftly detected charged and sentenced is no 42 substitute for PREVENS. Only occur after the harm 43 is done after the child is damaged. The 44 prevention means the child will not be damaged. 45 Child sexual abuse is a crime of the present 46 against the future. To protect our own future we 47 will to support he have reasonable measure we can

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1 to prevent that abuse. 2 Thank you. That's it. 3 THE COURT: Thank you. Thank you Mr. Ma TAS mat mat 4 thank you. 5 THE COURT: Mr. Reimer did you want to. 6 MR. REIMER: My Lord, I wonder if I might actually make 7 a few brief submissions tomorrow morning if that 8 would be okay. 9 THE COURT: We seem to be on time. 10 MR. REIMER: We are roughly. SAZ I assay I don't 11 expect to be long. I might be able to shorten 12 them up a bit. 13 THE COURT: Right. We seem to have a fair bit of time 14 tomorrow morning tomorrow rather. 15 MR. REIMER: Thank you. Then we are adjourned. Thank 16 you very much. 17 THE CLERK: Order in court. Court is adjourned until 18 April 1st 2011 at 10 a.m. 19 (Proceedings adjourned at 3:32 p .m.) 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47