1

1 March 30, 2011

2 Vancouver, B.C.
3
4 (DAY 35)
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 30th 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: Mr. Jones.
13 MR. JONES: Thank you, My Lord. Good morning. Just on
14 the question of scheduling Your Lordship may share
15 some concern that has been expressed by others I'm
16 not going to get through the balance of my
17 arguments through noon. I want to advise the
18 Court that my friends have Canada have kindly
19 offered to let me go as long as I need and we
20 would am an accommodate out of the time that they
21 have had allotted to themselves so I may go over
22 into the afternoon. I don't expect by much.
23 THE COURT: Thanks.
24 MR. JONES: Before I begin with my written submissions
25 on the law beginning with section 2A of the
26 charter I wanted to spend a little more time
27 cutting through some of the under brush so we may
28 be a little more focussed on what in our
29 submissions are the central issues. We've
30 described of course from the very beginning of
31 this reference we felt the three central questions
32 were harm, purpose and definition or
33 interpretation or overbreadth depending on what
34 you looked at.
35 I think in light of the evidence with respect
36 to harm and purpose this is really going to be a
37 case about definition and overbreadth. I wanted
38 to clear up or make a brief submission with
39 respect to Your Lordship's question yesterday
40 about the meaning of practice as it sits in that
41 provision someone who entries into or practices
42 either polygamy or a form of conjugal union with
43 more than one person at the same time and I did
44 that at Your Lordship's encouragement went back
45 and had a look at that and I think I was wrong
46 yesterday when I said that entries into was with
47 respect to one and practice is with respect to
 2

1 another. I think they apply both those terms

2 apply to both sections and I'll tell you why I
3 think that.
4 I went and consulted a few dictionaries on
5 what the word practice means and the standard
6 definition seems to be as it is used as a verb to
7 do or engage in. So the question is and just
8 taking the last part of that is it possible to
9 engage in both polygamy and a form of conjugal
10 union with more than one person at the same time
11 and I think it is.
12 So I think that's the way it's being used and
13 I think if you look at the context of it I mean
14 how this was developing, one of the concerns that
15 we've already discussed when we were talking about
16 the history was that the threat was that Mormon
17 families would simply be arriving Mormon or
18 Muhammadan families would simply be arriving
19 without any knowledge on the part of the state
20 about how the relationships were entered into so
21 they clearly wanted to capture both people who
22 were entering into polygamy and also those who
23 were practising it.
24 And that also would have swept aside an
25 extraterritorial problem because of course this is
26 not explicityly extraterritorial provision so the
27 simple practice of polygamy in Canada or the
28 practice of a conjugal union with more than one
29 person at the same time appears to have been
30 something that the law was concerned with.
31 So I wanted to talk a little bit about things
32 that are irrelevant before I go on to what I say
33 is relevant. First of all the question of things
34 that are not criminalized and this is going to be
35 a recurring theme.
36 The point of the challengers in had particular
37 the Amicus but also at times of others and I say
38 that often their characterization of our argument
39 is maybe simplistic isn't the right word.
40 Cartoonish is more the right word. And having set
41 it up that way they would say something for
42 instance well there's this other form of polygamy
43 effective polygamy de facto polygamy polygamy
44 serial monogamy and they say you don't criminalize
45 that and then they cite Robert Wright for the idea
46 this is as bad as or worse than what I would call
47 actual polygamy. .
 3

1 So why don't we criminalize the act of a man

2 having several wives sequentially but we do
3 simultaneously. And I mean there are policy
4 answers to this. You can say well there's a
5 million reasons why went don't serial monogamy
6 permits a formal system of support to be imposed
7 it's a much more rigidly controllable phenomenon.
8 It imposes formal systems of support for
9 sequential families that aren't available to
10 simultaneous families and while a man may have two
11 or perhaps three SEN KWEN shall marriages in his
12 lifetime if he can afford it you simply do not
13 find any equivalent of hyper polygyny in serial
14 monogamy where people have five to 60 wives
15 simultaneous or sequentially.
16 So it's a very different question from a
17 policy point of view. But the point is that this
18 argument and the other arguments like it don't
19 have to be considered unless it were a principle
20 of law that the state could only uphold a criminal
21 prohibition if it also prohibits everything that
22 is similar. And that's simply not a proposition
23 of law. It's an interesting policy argument. It
24 might be a political argument but it's not a legal
25 argument and it is certainly not a constitutional
26 principle.
27 Similarly the Amicus says it would be absurd
28 to criminalize a lesbian for depriving a man of
29 his wife. Sometimes you have to wonder where this
30 stuff comes from but again it's simply irrelevant
31 on any level of legal analysis and we say that no
32 further breath on this reference should be down
33 the road of ad absurdum wish to make the argument
34 that lesbianism is harmful I suppose I can't
35 prevent him but again it's purely rhetorical.
36 It's politics it's policy. If the court accepts
37 polygamy is harmful it does not matter whether
38 anything else is or is not. Period.
39 And I would apply this also with respect to my
40 friend's submissions with respect to criminalize
41 and forced marriage and we'll get to the
42 jurisprudence but Parliament has a broad latitude
43 to decide which harms it will address and in which
44 ways.
45 And again entirely irrelevant to the present
46 discussion unless the court were to accept that
47 forced marriage is the only harm to which section
 4

1 293 is addressed and of course it isn't.

2 There's a straw man as a recurring theme in
3 had the arguments of my friends. Some of the
4 examples I've already given one of them we deal
5 more explicitly in reply and I would like to take
6 you to that now My Lord. That's in our reply
7 submissions and it's at page 14 and this the
8 attorney's supposed birthday attack. And I have
9 reproduced the submissions of my friends in this
10 regard at tab 3 and this is where he's talking
11 about legal limits of discrimination and this is
12 the provision is discrimination on the basis of
13 marital status and he supports his assertion of
14 discrimination on a number of grounds and I will
15 take you to paragraph 300 on 122 to begin.
16 So he's saying for the reasons set out above
17 the Amicus submits 293 constitutes blatant and
18 series discrimination on the basis of marital
19 status and on the last line he says it's obvious
20 that section 293 is discrimination of the deepest
21 and most blatant kind. And if I can just skip
22 down page 30 -- or paragraph 302 he says in the
23 Amicus's submission section 293's discrimination
24 can be seen in the manner in which the attorneys
25 have defended the law so he's actually using our
26 submissions in this case as proof of section 293's
27 discrimination and the argument is a little more
28 so fist it I indicated than simply that. I will
29 go back to my own submissions My Lord at paragraph
30 40 where I simply and I think fairly characterize
31 the argument of my friends.
32 He writes that the attorneys have mounted
33 accusations that birthdays are not celebrated in
34 polygamous families he goes on to retort he has
35 never heard celebrating birthdays is mandatory in
36 Canadian society. He then concludes with the
37 assertion that some polygamists do celebrate
38 children's birthdays and this is showing prejudice
39 she in the hands of attorneys who are said to be
40 exposed in perpetuating this kind of reasoning and
41 by the time we reach paragraph 309 of the Amicus a
42 he submissions the attorney's birthday attack has
43 become an example the kind of reasoning section
44 293 sets in motion because the provision validates
45 polygamists has a target of any variety of
46 critical attacks.
47 I will look forward to my enfriend submission
 5

1 it's obviously difficult to reply entirely in

2 advance but as far as I've been able to DIFRT a
3 DERT of birthday RE develop ry has infer been a
4 related harm alleged by earn the attorney or
5 Canada such deprivation is never mentioned the
6 opening statements or the closing submissions of
7 either attorney nor does it feature in the earlier
8 statement of position. It's possible that some
9 polygamy monogamists do not celebrate birthdays
10 for many reasons. Many monogamy monogamies do not
11 either. The basis for this prejudiced at a tack
12 as my friends refer to it is explained by the
13 Amicus at thinks paragraph 306B and that's over on
14 page 124.
15 So he's using this as an example of the kind
16 of criticism and the kind of prejudiced attack
17 that the attorneys are are making on polygamists
18 and at B birth days are not celebrated in
19 polygamist families this charge was put forward by
20 a number of AGBC's Witness 2 in response to
21 counsel's confession and put some of the FLDS
22 counsel for the attorneys. And then he goes on to
23 say they never heard celebrates birthdays is
24 mandatory.
25 You know, we say this is another example of
26 where you drill down into the references cited and
27 he's given no footnote references but referenced
28 in a general way two types of attacks the attorney
29 is supposedly trying to make. So what we did is
30 we went back through the transcripts and did an
31 exhaustive word search for birthday just to see
32 gosh what had we said that could possibly be
33 interpreted in this way. And we say there are no
34 references in the transcripts for a charge put
35 forward by a number of AGBC's witnesses in
36 response to counsel's questioning nor are there
37 references in the transcripts where the charge was
38 put to some of the FLDS witnesses by counsel for
39 the attorneys.
40 Over on page 16, paragraph 44 we say that a
41 number of the Attorney General's witnesses and one
42 other describe the observance of birthdays in
43 various ways in the though not then even in
44 response to any birthday related questions to the
45 attorneys. It doesn't appear from the transcripts
46 any part levelled the charge in question so what I
47 have done My Lord is just reproduced these
 6

1 transcript excerpts with respect to birthdays

2 beguning at tab 8 -- no, I'm sorry. It's at tab 9
3 I'll you through them. Paula bar RET that had had
4 the videotaped interview before the court and I
5 will begin at line 1. This is the reference to
6 PIRT days she made. And I never deposit to share
7 their birthdays and I missed all their birthdays I
8 missed all their happiness I missed all their
9 mothering love et cetera et cetera and she was
10 talking about the dissolution of her family in the
11 polygamous community in which she lived. And that
12 was in response to the attorney's question and can
13 you tell us what happened. If anything it seems
14 to confirm there was birthday celebration in that
15 polygamous community and that family.
16 The next tab Kathleen Mackert again a video
17 affidavit. And Kathleen Mackert as you recall
18 described a very depriving upbringing generally so
19 she did talk about perfunctory birthday
20 celebration if I can put it that way. She said
21 and I'm beginning at page 95 line 13 and so I grew
22 up with no friends and no social connection we
23 weren't allowed to have friends at school and we
24 had no Christmas and we had no birthday
25 celebration was simply singing a birthday song.
26 Early in life mother used to have a cake or used
27 to do a cake but then father stopped that.
28 Now, hardly a charge that birthdays aren't
29 celebrated in polygamous societies and certainly
30 not anything directed by the attorneys general
31 question. I call her on her birthdays talking P
32 her mother and Mother's Day at his house because
33 you know it's Mother's Day. Some indication of
34 observance of birthdays if not a celebration but
35 in response to a very general line of question no
36 charge is being put.
37 Over to the next tab, is it, this is Carolyn
38 Jessop and she is describing her marriage ceremony
39 in the FLDS and at page 20 line 4 she says after
40 the marriage ceremony then Merril dropped my hand
41 out of my room and there was a dirt birthday party
42 and congratulating him I didn't know where I fit.
43 So there's a passing reference to a birthday
44 celebration. In the FLDS and this is in response
45 to the attorney's fairly uncontroversial question
46 I would have thought and what was it like this
47 ceremony.
 7

1 Over the next tab, Carolyn Jessop. Sorry.

2 That one is not on this point.
3 Then we have -- so those are all the AGBC's
4 witnesses that even mentioned the word birthdays
5 so the question is do they bear out that the
6 attorneys witnesses put forward the charge that
7 birthdays were not celebrated in the polygamous
8 families.
9 Then we have the evidence of Alina Darger my
10 friend refers to as well. Alina Darger was a 2
11 for the FLDS and this is under direct examination
12 by Mr. Wicket Witness on page 60 line 28. She
13 describes the birthday here and well for instance
14 and this gets to be a really hard thing is but he
15 referring to her husband every birthday he takes
16 the child whose birthday it is tries and take them
17 out and spend this one-on-one time with them. And
18 that was in response to Mr. Wicket's question you
19 had a chance to observe your husbands interaction
20 with your children. Can you describe that for His
21 Lordship, please.
22 So no charges there. No discrimination there.
23 So that deals with the first source that my
24 friends cited for this supposed argument of the
25 attorneys general. The general source that he
26 cited with as that questions were put by the
27 attorneys to "some of the FLDS witnesses"
28 regarding celebration of birthdays. So we looked
29 through the FLDS witnesses. You remember there
30 were three personal Witness 2 anonymous witnesses
31 from the FLDS and the only thing we found that was
32 only like -- that referred to birthdays at all was
33 the questions put to Witness No. 4 and I'll just
34 take you to that. That's at tab 15, My Lord.
35 Witness 2 and this was part of a line of questions
36 that seems PR effectly clear to me made to lay the
37 foundation of the age of the various participants
38 to the polygamous relationship that was being
39 described by Witness No. 4 so I was asking the
40 witness about general questions about how close
41 they were, the members of the family how close the
42 sister wives were whether or not I began for
43 instance do you know all of their names. She said
44 of course I know all of their names. Of course
45 she did.
46 And then at paragraph 20 line 20 page 9 so yes
47 she said she knows all her is it wife's childrens
 8

1 names and then I ask do you know all their

2 birthdays and again please don't give any of their
3 birthdays she certainly knows some of them I don't
4 remember all of them all the time. DAPTS aren't a
5 really important thing in my life. It's just --
6 it is to other ones if of my sister wives but I
7 couldn't name off the top of my head every one of
8 their birthdays I said sure but I know about the
9 month or whatever. Right. Okay. So and we
10 haven't heard any evidence on this but do you
11 celebrate birthdays in the FLDS? She said yes.
12 Celebrate we don't actually use that word we do
13 we'll make a cake for that person you know and
14 give them some gifts make some some new clothes
15 and try to make it special for them on that day.
16 Q And then that would go aboutE boat for
17 the children of the household and for the
18 sister wives and for the husband?
19
20 Now we're getting to the point that is relevant in
21 the laying down the things we needed most to know.
22 She said
23 A Right.
24 Q Okay with respect to your sister wives
25 you would know where they were born and
26 where they grew up?
27 A Mostly.
28
29 And then it carries on and midway through the next
30 page My Lord line 15 I continued to request
31 Q Do you acknowledge okay I'll use the word
32 celebrate I'm not trying to impose it on
33 you anniversaries marriage anniversaries
34 wedding anniversaries of the sister
35 wives.
36 A Yes, we do.
37 Q Are those celebrated.
38 A Yes. All the sister and acknowledge at
39 least the day as the anniversary date and
40 so on and then it got more particular the
41 next question.
42 Q Do you know how old your sister wives
43 are?
44
45 And of course that's where we were all leading
46 with these questions, My Lord. We wanted to
47 establish the age of the participants to this
 9

1 polygamous relationship completely relevant and I

2 submit completely appropriate foundational
3 questions for the cross-examination here.
4 So I'm back at my paragraph 45 of my reply
5 argument and I say that these -- that this
6 question regarding birthdays and it's the only one
7 it wasn't some of the FLDS witnesses it was one of
8 FLDS witness is the only question with respect to
9 birthdays. This was one of a series used to
10 establish that she and members of her family would
11 be aware of one another's ages something of
12 obviously fundamentally relevance given subsequent
13 revelationings and let's not 17 years old at her
14 time of marriage. 15 years old her sister wife at
15 marriage. Husband in late 30s and early 40s at
16 the time of marriage.
17 I needed to know that she knew when the
18 birthdays were, when the anniversaries were. How
19 old these people were.
20 So that witness confirmed again as all the
21 other witnesses appear to have done that birthdays
22 were celebrated in these polygamous family
23 although she didn't like the use of that
24 particular term and there's no suggestion by
25 counsel that birthdays were not celebrated by
26 polygamists the point of the question put to
27 Witness No. 4 was to establish that they are.
28 I say it's rudimentary indeed trite legal
29 principle that counsel's questions are not
30 evidence before the court of anything and surely
31 surely least of all of a section 15 charter
32 breach. We say that the Amicus's reliance on what
33 appears to be an imageded birth day attack on
34 polygamists and were assured by the Amicus there
35 are countless more unidentified but similar
36 attacks and that I refer to earlier and I cited in
37 my footnote My Lord the allegation that we were
38 demeaning witness number # 2 by asking her
39 questions with respect to how many Bountiful
40 students had gone on to professional educations
41 and careers we say that this reveals a weakness
42 that undermines many of the most emphatic
43 assertions.
44 And it's a pattern that is repeated you know
45 it's difficult to have to go through something
46 like that that simply is stated in sort of an
47 offhand way with reference to the transcripts and
 10

1 show that there's actually nothing behind it and

2 you have to do that like the Yearning For Zion
3 exercise that we went through yesterday.
4 Unfortunately you have to do that again and again
5 and again with these assertions both with respect
6 to fact and with respect to their characterization
7 of their arguments and as we saw yesterday in the
8 invocation of the Utah Supreme Court case in the
9 Yearning For Zion you have to go back with respect
10 to their invocations of the law of the cases of
11 their summaries of that.
12 And it makes it difficult and it makes it
13 particularly difficult replying and replying in
14 advance.
15 There are other examples and I'll give a
16 couple. At paragraph 469 the Amicus suggests says
17 that the defenders suggest further harms caused by
18 polygamy are that women in polygamous marriages
19 will have too many children then says this is an
20 impossible subject for the law because the law
21 shouldn't concern itself with questions of how
22 many is too many. Again it's a bit of a straw man
23 argument. But the Amicus devotes a full seven
24 pages to addressing it. Their point at one point
25 appears to be having 57 children in a house may be
26 better than having two or four. I suppose they're
27 entitled to make that argument if they want to.
28 No one is suggesting that the state could or
29 should criminalize large families. And the Amicus
30 blends sections of the oaks analysis here that
31 must be kept separate. It may be arguable that
32 society benefits if on average there are fewer
33 children in a household rather than more.
34 Investment of the parents and time and
35 attention in addition to actually resources per
36 child would be increased that may be a trend
37 worthy of promotion JAUL all it's a policy
38 question. It might also enter the legal analysis
39 as a salutary effect of section 293 but that's a
40 far cry from saying the criminal law could be used
41 to enforce some definition of too many children
42 and a far cry from identifying too many children
43 as a harm to which the law -- the criminal law is
44 in isolation properly addressed.
45 There are other examples and I'll touch on
46 them as I go through my submissions but the one I
47 touched on yesterday was lost boys do not commit
 11

1 crime. It's not part of our argument that the

2 lost boys of Bountiful are any more criminal than
3 average citizens.
4 So there are two other points in my reply
5 My Lord that are legal points and I'm going to
6 deal with them in the course of my submissions
7 with are they fit most comfortably so I propose
8 now to deal with page 104 of my main submissions
9 which begins with a discussion of freedom of
10 religion.
11 We say at paragraph 267 that it's trite that
12 religiosity of a practice does not automatically
13 render it immune from prosecution. There are few
14 crimes that have not at one time or another been
15 excused on religious bases from petty fraud too
16 genocide. Clearly criminal activity such as
17 female genital mutilation honour killings and can
18 about a lymph may be closely connected with deep
19 religious or cultural beliefs. The religious
20 origin or nature of prohibited activity in other
21 words is not the end of the analysis it's only the
22 beginning.
23 The test for whether there is a prima facie
24 infringement of section 2A is recently set out in
25 the syndicate forth crest and a.m. as I Lynn case.
26 And that was the case Your Lordship will recall of
27 the had you Canada's the prayer structures erected
28 in contravention of as they particular lies and
29 justice Iocabucci at the first stage offage
30 freedom analysis an individual advancing an issue
31 premised upon a freedom of religion claim must
32 show the court that he or she has a practice or
33 belief having a nexus with religion which calls
34 for a particular line of counting either by being
35 objectively or subjectively obligatory or
36 customary or by in general subjectly engendering a
37 personal connection with the divine with the
38 subject or object of an individual's spiritual
39 irrespective of a whether a subject or object of
40 an individual's spiritual religious officials and
41 second that she is sincere in his or her belief.
42 Only then will freedom of religion be triggered.
43
44 And so we've taken a different tack in Canada than
45 they have in the United States for instance and
46 Your Lordship will see in some of the cases that
47 others will refer to they do draw a line between
 12

1 religious belief and practice and some of those

2 cases. We don't do that here. The cases have
3 never done that here religious practice is as
4 prima facie protected as belief and nor do we take
5 the approach that it has to be an established or
6 formal part of some significant size of religion
7 that if they are are religious beliefs and if they
8 are sincerely held by even a single individual and
9 even if they are not compulsory beliefs but simply
10 permissive beliefs then on the collective
11 jurisprudence of the Supreme Court of Canada they
12 have prima facie 2A protection.
13 Now there are two other stages to the analysis
14 and Your Lordship might hear a lot of submissions
15 on it. I'm not going spend a lot of time because
16 I think the analysis couples out the same way
17 however you do it and this might not be the
18 appropriate forum for rearguing the Supreme Court
19 jurisprudence but the first asked whether the
20 infringement is directivial or insubstantial and
21 for present purposes we do not dispute that the
22 infringement is beyond trivial or insubstantial.
23 The second requires the religious freedom to be
24 balanced against other rights and interests and
25 this is where I suppose there is a controversy
26 concerning the cases and I think my friends the
27 Amicus agree there is a slightly vague ratio to be
28 drawn from the section 2A analysis as it is
29 evolved and that is whether these -- whether this
30 balance should be at the 2A stage or whether it
31 should be at the section 1 stage.
32 And my paragraph 270 I just talk about what I
33 just did, the distinction between religious views
34 and practices and the lack of requirement that any
35 part of established faith.
36 We say at 271 that the evidence indicate that
37 is it's possible for individuals to observe any
38 religion with with any polygamy is accepted or
39 encouraged without actually practising polygamy.
40 Although some, including some fundamentalist
41 Mormons do appear to believe that are advantages
42 in the after life to hose THO practice as opposed
43 to simply espouse the principle. The attorney
44 therefore accepts that some people practice
45 replying in accord with deeply-held religion SXRUS
46 each if on the evidence that weren't the case here
47 we were would be prepared to argue that on the
 13

1 basis of a reasonable hypothetical.

2 Now since big M drug matter the Court has
3 confirm that RNLS freedoms were nonetheless
4 subject to limitations when they
5 disproportionately collided with significant
6 public rights and interests. Whether this should
7 be weighed at 2 or 1 is of course the interesting
8 legal question. It reflects on who carries the
9 burden and of course in this case in this
10 reference that concern is muted.
11 We would say as a principle that its
12 appropriate to weigh competing values at the
13 section 2A stage particularly where the competing
14 values are themselves protected charter rights.
15 We note the presence of the equality provision in
16 section 28 of the charter. So even when polygamy
17 can can be said to rise to the level of a
18 fundamental tenet for charter purposes and
19 assuming the infringement is non-trivial the
20 attorney does not concede the breach of section 2A
21 but we are prepared to argue as if it were
22 breached.
23 The difficulty with.
24 THE COURT: Apart from the burden of proof is there any
25 difference in the analysis if one does it at the
26 2A stage versus the section 1 stage?
27 MR. JONES: I don't think it would be certain justs a
28 the question the difference between section 7 and
29 section 1. I don't think it would be certain
30 every element of the oaks test would be
31 satisfied -- would need to be satisfied in this
32 way so it may be a lower burden where other rights
33 are engaged there may be more deference accorded
34 to Parliament.
35 THE COURT: And the analogy we have already of this
36 type of analysis is in the freedom of expression
37 right especially with respect to expression on
38 buses expression of Street corners.
39 MR. JONES: Yes.
40 THE COURT: Expression in courthouses.
41 MR. JONES: Yes.
42 THE COURT: Where you do are can whether the freedom
43 extends to the location and time.
44 MR. JONES: It's quite a so fist it I indicated
45 analysis as Your Lordship knows whether it's even
46 protected expression.
47 THE COURT: Correct.
 14

1 MR. JONES: Necessarily so we would argue fur

2 equitifully analysis like expression any crime can
3 have a religious component in the same way that
4 any expression or any action any deliberate action
5 can have a communicative component.
6 Because and as we say at # 274 if professor
7 hog and we've cited him here and perhaps I'll when
8 I will what he says the idea that premium of
9 religion authorizes religion practices only so far
10 as they do not injure others have been abandoned
11 by the Supreme Court of Canada in favour of an
12 unqualified right to do anything that is dictated
13 by religious belief.
14
15 And you know, one has to defer to professor hog in
16 the summary of what the Supreme Court says but if
17 he's correct then any crime at all from writing a
18 bad cheque to mass murder is a protected exercise
19 of religion prima facie protected if a single
20 individual sign seerly believeses there's an
21 religion imperative. We would say where they
22 injurious at least where they are directly
23 injurious for heaven's sake but we also say for
24 indirect injury that should come in at the section
25 2A section.
26 We say at 275 in truth this is a case where
27 the analysis merges with the question of
28 arbitrariness and justification upped section 1 as
29 it did in the recent decision of AC v. Manitoba
30 director of child family services and this was
31 another one of the series of blood transfusions
32 cases in this case chief gist McLaughlin wrote in
33 this case the section # and section 2A claims
34 merge upon close analysis. Either the charter
35 requires that an ostensibly mature child under 16
36 have an unfettered right to make all medical
37 treatment decisions, or it does not regardless of
38 the individual child's motivation for refusing
39 treatment. The fact that AC's aversion to
40 receiving a blood transfusion springs from
41 religion conviction is it not change the essential
42 nature of the claim as one for absolute personal
43 autonomy in medical decision making.
44
45 And I think there's an analogy here over at 276
46 the essence of the fundamentalist Mormon claim
47 like that of a polygamous Muslim is the same: one
 15

1 for absolutely personal autonomy in marriage

2 structure decision making and it merges really
3 with the claim of the polyamorists at least
4 whereby they would wish to make their
5 relationships sufficiently formal to fall within
6 the Criminal Code prohibition.
7 So as such we say the asserted right must be
8 weighed against social interest in placing
9 restrictions upon. This can be analysed under
10 section 2, section 1 off section # but the answer
11 will be the sanely.
12 The fact that the restriction interferes with
13 religious as wet well as secular practice does not
14 change the result. Personal autonomy and
15 religious freedom should beet yield to the more
16 substantial interests at stake.
17 And we say at 277 My Lord and my friends focus
18 on this to some extent as perhaps another example
19 of the attorney's prejudice or at least the
20 religious intent of the law. But it's something
21 that simply can't be overlooked in this case.
22 This case may be unique in the section 2A
23 jurisprudence in that because polygamy's harms are
24 most obvious where there is the presence of an
25 external supposedly the religiosity of the
26 practice itself exacerbates the harm. We have
27 seen the extent to which religion is used as the
28 control mechanism as the enforcement mechanism
29 that magnifies the harms of polygamy. The
30 evidence that is emerged from expert and lay
31 witnesses alike indicates that the greater the
32 religion fur VER with which polygamy is
33 intertwined the more harmful it's expected it be.
34 This is not the so this is not so with any other
35 case asserting a religion right to do something
36 prohibited.
37 There is nothing in the religiosity that made
38 them worse in any other structure violation of
39 there is nothing about the religiosity of the
40 carrying of a kerpan or the wearing of a turban
41 that have also been found to be protected in
42 different contexts. There is something
43 significant and significantly harmful about the
44 religious manifestation of polygyny.
45 I move on My Lord to -- one other point I
46 should make here and we touch on it later. This
47 assertion of freedom of religion particularly by
 16

1 the fundamentalist Mormons but by any faith, any

2 more insular or more isolated religious society
3 and it's another unique as equity PEKT of this
4 Phil SOFfully and possibly legal that is the right
5 that is asserted the right to polygyny and all of
6 the religious traditions we have identified
7 possible exception of wick YANs and we will deal
8 with them all of the religious rights associated
9 with the rights to be polygyny and not to be
10 polyamoury. But because of the simple math
11 mechanics of it one cannot exercise that right
12 without ipso facto denying one of your
13 co-religionists his religious right and that's
14 unique because this is a -- this is a freedom of
15 religion you know there's long been a debate of
16 with you rights are zero sum gains which are not.
17 If I give you more freedom of speech does that
18 mean I have less O and so under what
19 circumstances. Freedom of religion like have
20 freedom of expression usually isn't that kind of
21 of right. You're usually not automatically
22 suppressing someone else's religious practice by
23 recognizing the complainants but here you are.
24 It's really is a zero sum game.
25 Now that might go to an argument that this is
26 not overall beyond trivial and insubstantial
27 because overall balances.
28 We're not going to make that argument before
29 you because there may be SMANS instances where
30 it's not a zero sum game but we don't think it's
31 irrelevant that by and large it is. So you move
32 object to the next section and CPAA argues freedom
33 of expression under the charter. The group
34 suggests that conjugal polyamoury is a protected
35 expressive activity. We say this has been tried
36 and rejected before by justice Pitfield of this
37 court who held in the EGALE case that the words
38 freedom of expression are not apt to describe the
39 formalization of the legal relationship that is
40 marriage. We say the analogy is apt but more than
41 that we say that assuming that any particular
42 polyamorous relationship falls within this
43 definition 293 it's difficult to comprehend the
44 commission of a crime per se as an independent
45 form of protected expression. Any non-secret
46 breach in face of the law is an expressive act
47 it's at least expression of deaf YANS of the law.
 17

1 Talked about parking a car as an expressive act.

2 P it's done to convey meaning. Not if it's done
3 for its own sake.
4 We say this doesn't elevate every flagrant
5 crime to the level of protected speech if it's
6 otherwise valid law freedom of expression could
7 not be used to permit it's breach. Now, you guess
8 he would close this section by saying what would
9 be the consequences if I was wrong in that
10 submission. The consequence would be that it is a
11 protected form of activity that would have to be
12 factored into the deleterious effects of the
13 criminal law when weighing it under the last stage
14 of oaks but even if that's the case because the
15 infringement is itself the restriction it can
16 cannot go beyond the restrictions of any other
17 breach that's been identified that's already taken
18 us to SIKS 1 so at the end of the day whether or
19 not it has any traction under section 2B at the
20 end of the day if it did it would be completely
21 subsumed within the 2A and if there is a 2D or
22 section 15 breach.
23 And we say the same general thing in response
24 to the section 2D claims freedom of association.
25 And the Amicus's argument is that the law permits
26 multi partner sexual activity but for the
27 polygamous groupings and this is a violation of
28 freedom of association others of the challengers
29 take a similar position freedom of association
30 under the charter has had a difficult history and
31 the court has been willing to expand freedom of
32 association protections beyond its original
33 interpretations. So the fact that it's never been
34 successful before as a form of -- as a recognized
35 form of protective association isn't conclusive
36 but we would encourage the court to look at how
37 that SPENGS really has occurred and you know the
38 purpose it would seem of freedom of association
39 appearing as it does among other socially
40 interactive subsections of section 2 freedom of
41 religion, freedom of expression SNA it's really
42 targeted to our ability as political bodies as
43 social extra family units to come together and
44 associate for democratically beneficial purposes
45 although that's not a requirement of the section
46 that I think is the hoped for result so in the
47 recent decision of the health services and support
 18

1 bargaining association VE British Columbia and I

2 think that's more pop already LARly called the
3 Bill 29 case the Court decided the protections #
4 2D should be extended to include collective
5 bargaining but it was very careful. It had to
6 overturn three of its cases on this and so it did
7 so only after finding first an interpretation of
8 section 2D that precluding collective bargaining
9 for its ambit would be inconsistent with Canada's
10 histor Rick recognition of the importance of
11 collective bargaining to freedom of association.
12 Second that a collective bargaining is an integral
13 component of freedom of association in
14 international law which may inform the
15 interpretation of charter guarantees and finally
16 that interpreting section 2D is including the
17 right to collective bargaining and consistent in
18 freedom in this case we say the Amicus and the
19 other challengers do not suggest that there's any
20 authority in the case law for inclusion of
21 polygamous marriage a protected under 2D. I may
22 have to change that now. I think they are making
23 that argument. The argument that freedom of
24 choice intimate partners was rejected in this the
25 adult consensual incest case of RV and S again
26 analogous decision. In that case the Court
27 invoked the Ontario Court of Appeal's in Catholic
28 children's aid society for the proposition that 2D
29 was clearly designed to protect association with
30 persons beyond the primary family unit and the
31 justice tar poll ski wrote freedom of assembly and
32 association are necessarily collective and so
33 mostly public are constitutionally concerns have
34 not been with assemblies within families or
35 associations between family members rather the
36 protections we have been concerned with are for
37 those assemblies and associations taken outside of
38 the intimate sickle of our families and Canada
39 deals with this but freedom of association was
40 raised by the claimants in this the British
41 Columbia and Ontario changes to the exclusion of
42 same sex couples but no court in any province
43 accepted that 2D could be engaged by the inability
44 to marry and my friends the Amicus I believe in
45 their submissions point out that at least one
46 court simply declined to answer the question and I
47 think that's right. But this court has heard no
 19

1 in the family setting so as to establish an

2 historical case for I object conclusion. That was
3 the first thing that the Bill 29 did. The
4 challenges have produced no evidence supporting of
5 idea of had polygamous of international law and,
6 in fact, we say the consensus in international law
7 is that polygamy should be banned finally they
8 have articulated at this point no argument that a
9 right to polygamous marriage is consistent with or
10 promotes other charter rights freedoms or values
11 and we say, in fact, on the evidence it clearly
12 does the opposite.
13 .
14 I'll move on now My Lord to section 7 which
15 will be one of the most in my submission important
16 aspects the attorney accepts that section 293
17 engages section 7 of the charter because iter P
18 permits imprisonment. However, the challengers
19 here assert a broader interest, connected with the
20 infringement of the liberty to marry a person of
21 one's choice. The BCCLA also suggests that
22 security of the person is engaged through the
23 consequences of criminalization in had the form of
24 psychological stress which might also be linked to
25 the insularity of Bountiful and other polygamous
26 communities in which could tend to make in their
27 submission residents those communities reluctant
28 to access health or other services fir the liberty
29 to marry more that you know one person. Paragraph
30 290. We concede we accept we acknowledge that
31 liberty may be engaged in section 7 without the
32 threat of imprison arement in Malmo-Levine that
33 was the marijuana case the Supreme Court of Canada
34 summarize the law as follows. Will in morgue be
35 taller Wilson J suggested that liberty grants the
36 individual a degree of autonomy in making
37 decisions of a fundamental personal importance.
38 Without interference from the state" liberty
39 accordingly means more than freedom from physical
40 rest STRINT. It includes the right to an eye
41 reducible sphere of personal autonomy wherein
42 individuals may make inherently private choices
43 free from state interference." That's the general
44 rule that my friends from the have I I will have
45 liberties association expressed through the famous
46 the state has no business in the bedrooms of the
47 nation. They extend that I think to kitchens in
 20

1 their submissions.
2 This is true only to the extent the court said
3 that such matters can be properly be characterized
4 as fundamentally or inherently personal such that,
5 by their very nature, they implicate basic choices
6 going to the core of what it means to he be enjoy
7 individual dignity and incidence. Number of
8 things said cited there.
9 Now, interestingly in God bought and long GUL.
10 THE COURT: Long GU.
11 MR. JONES: I was hoping.
12 THE COURT: Long Gail. Pongracic-Speier long Gail.
13 MR. JONES: Things you should check before you start.
14 Justice La Forest write reasonable ground to the
15 three members of the court and I'll refer to that
16 case as God bought My Lord found.
17 THE COURT: You're probably mispronouncing that too.
18 MR. JONES: Found that the choice of NS was a liberty
19 interest within the meaning of section # the
20 remainder of the court did not so at least we have
21 three judges of SPROOELG of Canada saying this
22 residence determines the human and social
23 environment in had which an individual and his or
24 her family evolve: the type of neighbourhood, the
25 school the children attend, the living
26 environment, services. In this sense, therefore,
27 residence affects the individual's entire life and
28 development.
29
30 So we would say that on an NANL analogous
31 reasoning the attorney accepts fundamental choices
32 of family arrangement and although the case are
33 NOERM difficult of this issue we're prepared to
34 argue N O basis that section 7's liberty interest
35 is engaged with or without the threat the
36 incarceration.
37 We say though that the consequences of are
38 limited given that liberty is in any way inGAEJed
39 by the penal sanctions however it does require
40 that this Court weigh this I object FRIRNGment of
41 liberty as well in the fundamental justice
42 analysis particularly with respect to
43 proportionalty. I will explain why later you
44 don't have to weigh it in the section 1 analysis
45 but we accept that should be weighed in the
46 equation.
47 Next security of the person and this is
 21

1 arising from the morgue an taller case he accepted

2 state imposed psychological stress could trigger
3 section 7's protection. In ma volume will he sign
4 it was EPed preventing a person from gaining
5 access to medical help may engage the security of
6 the person interest in section 7.
7 The BCCCLA appears to to be arguing that the
8 fear of prosecution is a series state-imposed
9 psychological stress", and moreover that the
10 insure layerty to which this leads may be
11 depriving individuals of the opportunity to access
12 needed medical and other services. Bountiful
13 makes the commission of crimes against those
14 persons more difficult to defend against.
15 The fear of criminal prosecution we say no
16 doubt has contributed it I can MOing the residents
17 of beautiful and the US F FLDS communities
18 secretive and insular. But is this fear one of
19 prosecution under section 293 which as my friend
20 repeatedly emphasises has not been prosecuted for
21 a century or is it the fear of approximates for
22 the other crimes that polygamy causes.
23 In any event, there is in this case no
24 evidence we say of surveyors SOIK logical harm
25 resulting from any State action as we described
26 for instance in the BLAN could he case. Remember
27 witness number # 2 said in her affidavit that her
28 seven year old child has terrible fears of that
29 you tell authoritying coming to get us then
30 confirmed under cross-examination this could only
31 be as a result of what the boy had been taught
32 which her and members of the community. Not as
33 the result of state action.
34 This child I think she testified had virtually
35 no contact with with anyone apart from dentists
36 and so forth outside the community. If this Court
37 accepts that what we have learned about
38 criminality at Bountiful the traffics in sexual
39 exploitation of girls for instance or harsh
40 physical abuse in order to I object still
41 discipline and obedience if the Court accepts
42 those things are ancillary to the creation of
43 supply of child bride that is polygamy demands
44 then decriminalizing polygamy is unlike to make
45 Bountiful less insular. It seems fantastic to
46 suggest that these crimes are hidden because
47 polygamy has been driven underground. These
 22

1 crimes are hidden because they are crimes. They

2 flow from polygamy. And they need to be kept
3 secret in order for their perpetrators to be able
4 to continue committing them.
5 We say that if any proof of this were
6 necessary it's that in the early 1990s mainly in
7 Bountiful since the early 1990s many in PUFL have
8 been quite open about their polygamy. A number
9 have appeared before the media to describe and
10 defend their conjugal arrangements crimes such as
11 the sexual exploitation or procuring of a minor.
12 What person who as tradeded his 15 year old child
13 bride is unlikely welcome to government scrutiny
14 in any aspect of thinks life. Setting side for
15 the moment whether there's a causal relationship
16 between criminalization and ensue layer
17 correlation the Amicus's own expert professor
18 Campbell readily committed that of under
19 cross-examination that Bountiful was once a
20 community so ensue layer that it had the
21 reputation for entirely shunning contact with the
22 outside world. She acknowledged that they had a
23 renewed engagement with the outside world ask this
24 came when Bountiful respects came under increased
25 legal jute any and the criminal prohibition
26 increasingly weigh and this was my question
27 My Lord of prove senior Campbell
28 Q Right. So is his TAF to say I think then
29 in the timeframe in which criminalization
30 as had an weighing more heavily on
31 resident's minds that this has also been
32 the period in I with the community has
33 been less insular and identity lated is
34 that true?
35 A I think that's a fair parallel." Only
36 one witness from Bountiful spoke to the
37 expected effects of credence
38 decriminalization on the insularity of
39 BEEFL. She testified ha she PT examined
40 the community would remain insular and
41 isolated after decriminal like SAGS.
42 That is she said the way she liked it.
43 Here is the question.
44 Q So your expectation is that if polygamy
45 were decriminalized then -- and combined
46 with your hope that the community would
47 remain isolated and insulated, you
 23

1 would -- you would expect that if it was

2 decriminalized you would be able to
3 continue that isolated and insulated
4 existence; is that right?
5 A Yes.
6
7 No doubt they would, My Lord. If Your Lordship
8 accepts the harms including criminal harms
9 associated with polygamy there's no reason to
10 think simply decriminalization would remove that.
11 Anyway sea overall at evidence of the harm of
12 insularity is weak. No challenger has pointed to
13 any incident where a person has suffered injury as
14 a result of reluctance to approach authorities for
15 fear of being outed as a polygamist. New we get
16 to the meat of the section 7 would this be a good
17 time for a break.
18 THE COURT: It is. Thank you. 15 minutes.
19 THE CLERK: Order in court. Court is adjourned for the
20 morning recess.
21
22 (MORNING RECESS)
23
24 THE CLERK: Order in court. .
25 MR. JONES: Thank you, My Lord just one small matter
26 that was pointed out by my colleagues and for the
27 sake of completeness before I turn to section 7
28 you recall in this discussion of the birthday
29 accusation I went through the transcripts
30 describing he have AGBC witness that was alleged
31 to have made the charge that birthdays aren't
32 celebrated and I missed reference which
33 unfortunately is not a transcript I included in
34 the mini book either but it is at footnote on page
35 16 of my reply submissions and that was question
36 about birthdays put to Mr. Oler Truman Oler the
37 attorney's witness and he responded with testimony
38 recalling birthday breakfast and cake in his youth
39 so again nothing there to suggest any questions
40 constituting an accusation but for complete innes
41 that's at page 16, footnote 15 just near the
42 bottom of the transcript date page 13.
43 .
44 THE COURT: Thank you.
45 MR. JONES: So I turn now to fundamental justice and of
46 course section 7 permits deprivations of life
47 liberty or security to person liberty or security
 24

1 of the persons are ones we're interested in. If

2 it's in accordance with the principles of
3 fundamental justice and so challengers to a law
4 identify the principle of justice they say is sigh
5 late any day any particular law and in this case
6 the main areas of violation from established
7 jurisprudence are arbitrariness over breadth and
8 disproportionality those are the three principles
9 of fundamental justice they say are violented and
10 I will deal with each of those in turn. They now
11 in the closing submissions added the idea of
12 consent as a principle of fundamental justice and
13 we teal with that in our reply submissions so I
14 will go to that as well.
15 So I'm at paragraph 302 of my written
16 submissions I've just been to 302. At 303 we sort
17 of foreshadow the idea that we took from opening
18 statements that there was a notion of consensual
19 DULT polygamy that was being aadulted under the
20 rubric some sort of fundamental justice but it was
21 never articulated an individual thing.
22 We suggested that the two things that was consent
23 going to liberty and the question of harm going to
24 fundamental justice should be kept conceptually
25 distinct? Section 7 we brought consent clearly
26 into the fundamental justice argument. And so
27 perhaps with that because it also makes a good
28 introduction to the concept of what is a principle
29 of fundamental justice I will take you to my reply
30 submissions and that begins at paragraph 4, page 3
31 where we say that consent is not a principle of
32 fundamental justice.
33 I don't think there's any controversy about
34 the test for establishing the principle of
35 fundamental justice. It consists of the
36 following. This is if you're proposing a new one.
37 The principle has to be a legal principle as
38 distinct from purely moral or ethical principle.
39 Second there must be a significant societal
40 consensus that is fundamental to the way in which
41 the legal system ought fairly to operate. The
42 third must be capable of being identified with
43 sufficient precision to yield a manageable
44 standard. We're going to assume for the sake of
45 this argument that the third the third of these
46 criteria have been met by notion of consent as
47 it's understood in law but we say it could not be
 25

1 said to be the subject of significant cite

2 societal consensus that fundamental to the way
3 that the system ought narrowly to operate. And
4 it's rejection of the harm principle is a
5 principle of fundamental justice for section 7
6 purposes the majority in if mall mow will he line
7 have are activity each though undertaken by fully
8 consenting adults. This is what they said at
9 paragraph 118 a due you is an example of crime
10 where the victim no long culpable than the
11 perpetrator and there is no harm that is not
12 consented to. But the prohibition is nevertheless
13 integral to our ideas of civilized society. See
14 also RV JOEB done and job done was the consensual
15 fist fighting case. Similar incest under 15 a 5
16 of the Criminal Code by five consenting adults in
17 ton of these SNNs does the criminal law con PRM to
18 million's expression of the harm principle that
19 overhimself overs had own body and mind the
20 individual is sovereign. Note that in his
21 discussion in the red light the Amicus makes no
22 reference to the incest decisions that are
23 endorsed by the Supreme Court of Canada run of
24 which passage above these cases dealing with
25 consensual adult crest which sea are clear the
26 most analogous to the case at bar and then
27 Malmo-Levine paras 124, 125 speaking of harm to
28 self the ultimate explain we say of a consensual
29 crime the majority wrote we do not accept the
30 proposition that there is a general prohibition
31 against the criminalization of harm to self.
32 Canada continues to have paternalistic laws
33 requirement that is people wear seatbelts and
34 motorcycle helmets there is no con SEN thus sort
35 of legislation of justice. Whether a jail
36 sentence is an appropriate penty for such a
37 however they objection to it that aspect goes to
38 the validity of the assigned punishment does not
39 go to the validity of prohibit I'm going to refer
40 to that principle as well when we're talking about
41 gross disproportionality.
42 We say there's no consensus that laws
43 prohibiting a perpendicular from consensual self
44 harm if it there's no consensus there can be no
45 consensus that laws prohibits consensual harm by
46 others are violative of fundamental justice and we
47 say if nothing he would JOEB job my friends
 26

1 actually rely on makes this clear. [Phonetic] now

2 my friends rely at paragraph 360 of their
3 submissions on the right writing of professor
4 Stuart for the proposition that and this is what
5 professor Stuart wrote go and the Amicus's if
6 there was season consent the conduct was always
7 lawful. The requirement of lack of consent is a
8 part of any actus reus but I thank my friends for
9 including the entire paragraph in that quote
10 because it clearly puts it in context. The
11 paragraph begins professor Stuart's paragraph
12 begins setting the context that the principle that
13 he's espousing applies only to crimes where
14 consent of a victim does absolve appear accused
15 which makes the whole point cannot be stretched to
16 suggest that consent must or even should be part
17 of the actus reus of any crime nor can the
18 excerpts of GANTia and Sopinka an in JOEB JOEB
19 laws are premised on lack of consent and some are
20 not. Indeed in JOEB JOEB consent to a fist fight
21 was found to be no defence to a self causing
22 bodily and interestingly this is because the
23 activity involved had no social activity but
24 carrieded social costs not an are change TER
25 decision as my friends point out. But their
26 burden in establishing a new principle of
27 fundamental justice isn't limited to review of
28 charter cases of course because they would have to
29 show that there is a societal consensus behind the
30 principle it there can can be no crime where TLEZ
31 the consent of the participants.
32 But this really brings us to the final flaw in
33 the consent principle argument. We say that to
34 the extent that it's a legal principle at all it
35 could only apply to those offences where the harm
36 or risk that is subject to the consent is to the
37 direct consenting victim. The consent principle
38 can have no application to offences designed to
39 also protect indirect harms of the harm or broader
40 social interests and such cases the consent of the
41 participates and the criminal activity is eye
42 RIRLT. Incest is began perhaps the most analogous
43 the consent of all the participants in the
44 creation of a degrading and dehuman insiding video
45 is not a defence to obscenity charge nor is the
46 consent of all those exposed to it. The consent
47 by or each the participation of a French Canadian
 27

1 person in the creation of a statement that

2 promotes hatred against French Canadians is still
3 is subject to prosecution that's because these
4 things have social harms and it's not simply up to
5 the participants to decide whether to hoist those
6 burdens on to society.
7 And in Malmo-Levine perhaps the most
8 [phonetic] recent and best examined was immaterial
9 to the section 7 analysis. GAM being laws are to
10 the same effect SXOVEN. One could explain the
11 dualing laws inVOEKed by the Supreme Court of
12 Canada as well as an example of that you may be
13 consenting the court seems to be saying to the
14 dual lists you may be consenting to the immediate
15 harm that you run the risk of suffering but we
16 perceive a greater social harm in I allowing you
17 to consent to that activity to is he say that
18 distinction makes perfect sense in the case of
19 indirect harm and when there is even some indirect
20 harm that under lies the purpose of the statute
21 the consent principle if it's a legal principle
22 can have no application.
23 Now we say with respect to harm in the
24 analysis that really Malmo-Levine is answering
25 many of the questions here before the court. In
26 Malmo-Levine you recall Mr. Malmo-Levine sought
27 the liberty to participate in an activity which on
28 his evidence and perhaps on the balance of the
29 evidence was causing him no harm. It was causing
30 the people with whom he participated in no harm.
31 And, in fact, as far as the medical risks of
32 marijuana went it appeared that the strongest
33 evidence was that it was only particularly
34 vulnerable people elsewhere in society that would
35 suffer harm from marijuana use. And so there was
36 a section 7 challenge and other secs were
37 invokeded and the court said no prevents harm it
38 to those vulnerable persons justifies the blank
39 can he tell ban and justifies the restriction.
40 And really that's dispositive of so much of
41 the section 7 if you accept that there is at least
42 a reasoned apprehension of social harm from the
43 practice of polygamy.
44 I turn to arbitrariness My Lord at page 118.
45 Paragraph 308. It is a principle of fundamental
46 justice that laws should not be arbitrary. What
47 does arbitrary mean in this context. This is
 28

1 articulated by Chief Justice McLaughlin in

2 Chaoulli SCOMBH she a law is arbitrary where it
3 bear no, sir relation or is inconsistent with with
4 the objective that lies behind it to determine
5 whether this is the case it is in he is to
6 consider the state are and societal concerns that
7 the provision is meant to reflect. In order no
8 the to be arbitrary, the limit on MRIEF, LOOIBT
9 and security requires not only a theoretical
10 connection between the limit and the legislation
11 goal, but a real connection on the facts. The
12 onus of showing lack of connection in this sense
13 rests with the claimant. The rest in every case
14 is whether the measure is arbitrary in the sense
15 of bearing no real relation to the goal and hence
16 being manifestly unfair. The more serious the
17 impingement on a person's liberty and security,
18 the more clear must be the connection. Where the
19 individual's very life may be at stake, the
20 reasonable person would expect a clear connection,
21 in theory and, in fact, between the measure that
22 puts life at risk and the legislation goals MARNG:
23
24 Clearly there is no life at risk here so
25 perhaps the analysis would be somewhat less
26 strict but we say even on the strictest
27 analysis we have that nexus established here.
28 The utility ofH tone is an area in which
29 Parliament is DILTHSed to major I the Malmo-Levine
30 case. They wrote this. The Court has exercised
31 caution in accepting arguments about the alleged
32 ineffectiveness of legal measures. Where the
33 court they reference the firearm Act case. Where
34 the court held that the efficacy of a law or lack
35 thereof is not relevant to Parliament's ability to
36 enact it under the division of powers analysis
37 while somewhat different considerations come into
38 play under a charter analysis it remains important
39 that some deference be accorded to Parliament in
40 assessing the utility to perceive social ILSs the
41 questions about which types of measures and
42 associated sanctions are best able to deter
43 conduct that Parliament considers unSTIESHL is a
44 matter of legitimate going debate. Is another way
45 of characterizing the refusal of people in the
46 appellant's position to comply with the law. It
47 is difficult to see how that refusal can be
 29

1 elevated to a constitutional argument against

2 validity based on the invocation of fundamental
3 principles of justice. Indeed, it would be
4 inconsistent with the rule of law to allow
5 compliance with a criminal prohibition to be
6 determined by each individual's personal
7 discretion and taste.
8
9 So in order to be found arbitrary, a law must bear
10 no relation to or be inconsistent with the state's
11 legitimate objective. Here, the objective is to
12 reduce polygamy and its aTEP did that not social
13 harms. Section 293 clearly bears a relation to
14 that objective, and is not inconsistent with it.
15 All of the arguments of the challengers
16 advanced with respect to arbitrariness are
17 rearticulations of two assertions. First, that
18 polygamy causes no harm, or second, that if it
19 does can cause harm it's criminal prohibition is
20 inKEFK tiff at reducing polygamy.
21 The harms attributable to polygamy are
22 addressed throughout these submissions and I won't
23 repeat them here. The main question remain
24 something is whether the law is effective at
25 deterring or reducing polygamy.
26 The attorney says that a causal connection
27 between a law and the reduction in the harm it is
28 seeks to address is not a factor to be considered
29 under arbitrariness under section # and we deal
30 with NED under rational connection under section 1
31 is.
32 What Parliament seems to be -- what the court
33 seems to be saying in the section 7 cases an along
34 passage I cited to you was ineffectiveness isn't
35 an appropriate consideration here.
36 Turning to the next principle of fundamental
37 justice asserted by my friends and that's
38 overbreadt the first section UNTD over breadth is
39 polygamy and polyamoury. And this deals with the
40 obviously intertwined question of interpretation
41 and the threshold at which multi partner
42 interaction becomes criminal under section 293.
43 My friends obviously argue for the broadest
44 possible interpretation that captures the most.
45 The attorneys argue for a more restrained
46 interpretation.
47 The Supreme Court has recognized that a
 30

1 principle of fundamental justice is a principle of

2 fundamental justice the criminal legislation not
3 be overbroad what so that that MEP WROT for the ma
4 JO:
5
6 Overbreadth analysis looks at the means
7 chosen by the state in relation to its
8 purpose. In had considering whether a ledge
9 slay sieve provision is overbroad, a court
10 must ask the question: are those means
11 necessary to achieve the State objective?
12 She if the State, in had pursuing a
13 legitimate objective, uses means which are
14 broader than than is necessary to accomplish
15 that objective, the principles of fundamental
16 justice will be violated because the
17 individual's rights will have been limited
18 for no reason. The effect of overbreadth is
19 that in some applications the law is
20 arbitrary or disproportionate.
21 Reviewing legislation for overbreadth is as a
22 principle of fundamental justice is simply an
23 example of balancing of the State interest against
24 that of an individual. This type of balancing has
25 been approved by this court and cite red reGEZ,
26 lions, beer, THOCH son newspapers and cunning whom
27 however where an under is violented such is the
28 requirement of mention rye an are for penal
29 liability or a right it to natural justice any
30 balancing of the public interest must take place
31 under section 1 of the charter.
32 In unanimouslies a statutory provision to
33 determine if it'sover WROOD BROOD a measure of
34 deference must be paid to the means selected by
35 the legislature. While the Courts have a
36 constitutional duty to ensure that legislation
37 conformses with the charter, the legislature CHURs
38 must have the power it to make policy choices. A
39 court should not interfere with litigation merely
40 because a judge might have CHOEP a different means
41 of accomplishing the objective if he or she had
42 been legislator. Its true that section 76 the
43 charter has a wide scope. This was stressed by
44 justice lamer as he then was in the Motor Vehicle
45 Act case where he observed sections 8 and 14 are
46 illustrate tray tiff of deprivations who breached
47 the principles of fundamental justice.
 31

1 However, court and hay word before it can be

2 found an enactment is so broad it inFRIKs section
3 7 of the charter it must be BLEER that the
4 legislation enFRIPGs life liberty and security the
5 person it up necessarily broad going beyond what
6 is needed to accomplish the government Al
7 objective and of course that's my friend's
8 argument that it does do that.
9 Does do that.
10 And they point out as within incest and
11 obscenity many will of the harms associated with
12 polygyny exist whether O nor any particular
13 polygynous relationship is direct ry harmful to
14 the participants and irrespective -- I'm sorry,
15 this isn't their argument. This is my argument.
16 My argument is that many. The harms associated
17 with polygamy exist whether or not there he
18 directly harmful to the participants. Their
19 argument it's overbroad because it captures those
20 activities. PRALG the attorney accepts that such
21 consensual non-harm FOL MRIJS polyamorous
22 relationships can be presumed to exist novels it's
23 open to the court it FOIPD the harms a the large
24 without aggravating circumstances in a particular
25 case are sufficient to support a blank can he tell
26 ban on polygyny.
27 In the first place, all MRIJS relationships
28 KRPT to the marketplace harms described by doctors
29 Henrich, Grossbard and did he remember. In
30 addition, each carries with it, if not realized
31 harm, at least an increased risk of harm to the
32 participants and children inherent in the family
33 form.
34 It is not necessary to hive off or exclude
35 something called polyamoury from the credited
36 code's prohibition of polygamy. And it may not
37 even be possible My Lord and I home before the
38 close of my submissions I take you to the CPAA's
39 very earnest attempt to to exactly that to try to
40 design a law that would capture the bad law
41 leaving the good and I think their excel is a had
42 he develop HL tool in understanding why the plank
43 the ban perhaps is what is necessary.
44 Let me because I'll deal with that a little
45 bit later My Lord let me skip ahead to the
46 criminalization of victims argument and that
47 begins over the next page at paragraph 321. And
 32

1 here is a slightly different angle taken by my

2 friends regarding the criminalization of victims.
3 They say if section 293 is justified at least in
4 part on the basis that its objective is to protect
5 women can it still sanction prosecution of both
6 husbands and wives? Several of the challengers
7 point to the law's application to all participants
8 in a polygamous relationship as proof of clumsy
9 overreach. In his reply OEMG at paragraph 40 the
10 amicus rote obviously it would be absurd to
11 criminalize the alleged victims. But that is
12 pleasely what section 29 #. Does the polygamy
13 does not simply target rather criminalizes all
14 participants alleged victims and wrong wrongdoers
15 alike the it's hard to conceive of a law more
16 flagrantly OEF broad in its effects.
17 This is an argument that sort of parallels the
18 repeated blurring of direct harms and social
19 harms. And the question of consent that I already
20 took Your Lordship to.
21 If we have social harms then criminalizing
22 the participants in a polygynous marriage is not
23 criminalizing the victims because the victims are
24 outside that relationship. They may also be
25 inside the relationship that's a different
26 question.
27 But this isn't simply a law that criminalizes
28 as my friend puts the alleged victims and alleged
29 wrongdoers alike and if you accept social harm if
30 you accept social harm this argument too simply
31 has to collapse.
32 We say draw a parallel in paragraph 3 it 3 to
33 obscenity laws and again this is the related to
34 the question of consent. It doesn't matter if the
35 obscenity laws are justifieded in part on the
36 basis that they protect women in the production of
37 obscene material because they also protect society
38 from it. It doesn't matter if the women consent
39 to criminally obscene material and it doesn't
40 matter if everybody viewing it consents to it if
41 there's social harm attached the argument
42 collapses.
43 Before I move on to disproportionality My Lord
44 let me divert from my written submissions and
45 discuss circumstances in which we do have and may
46 have legitimately broad laws and I think if it you
47 look at all the jurisprudence on overbreadth
 33

1 together there seem to be two main reasons for

2 laws which capture behaviour which is in the
3 particular circumstances of an individual case
4 arguably harmless. The first is to deal with the
5 problems of definition. That's the idea we
6 touched on earlier the mail criminal law may
7 impose a single recognizable and workable
8 threshold and I was trying to think of examples of
9 this and maybe one of the best ones is drunk
10 driving laws. We recognize the risks associated
11 with drunk driving yet we also know for instance
12 that everyone reacts differently to alcohol. A
13 point 08 threshold may capture persons who are
14 completely debilitated and it may also capture
15 persons habitual drinkers perhaps, who are not
16 impaired to the extent wherewith there's any
17 measurable increased risk of harm.
18 It will also capture people who are engaging
19 in an activity that isn't harmful in the
20 circumstances if a person a .0 9 is driving a car
21 on an isolated country road at 5 miles an hour
22 there's no harm to anybody else there's no real
23 risk of harm to anybody else and I would probably
24 say you could put in expert evidence to the effect
25 that there's no increased risk to that person
26 compared to driving that road in an ordinary way
27 in a sober state but we set a threshold and draw a
28 line and it's appropriate that we do so.
29 And it's also appropriate that we say this if
30 the person could show it's not harmful that's not
31 an excuse in an individual case. When laws are
32 designed to address waive that carries either the
33 risk of harm not the certainty of harm this isn't
34 murder the carry the harm or the harm to society
35 at left arm what we call social harms here there
36 can be no burden on the state to prove or to enact
37 legislation requiring proof that that particular
38 person in that particular circumstance poses
39 increased risk at the same level. You know, we
40 set threshold THOELDs we can think of the aiming
41 of consent laws and this is the example we use in
42 the con sex. We have a large of age consent it
43 used to be 14. This law certainly captures -- let
44 me put this way. It's possible that you could
45 find experts to say there are some 15 year old
46 perfectly capable of consenting to sexual
47 intercourse it's also I'm sure possible to present
 34

1 experts who would say that many 16 year olds

2 aren't capable at least with the policy objectives
3 in mind.
4 We have to draw a line somewhere and so one of
5 the reasons for overinCLIEGS if I can put it that
6 way inclusion of non-harmful behaviour is if it's
7 necessary to provide a workable definition.
8 Another example is gun control laws in Canada
9 we recognize a risk associated with firearms so we
10 make it a crime for instance to display a firearm
11 without a trigger lock or to display it alongside
12 it's ammunition. This law is applicable whether
13 the firearm is in an isolated cabin on a remote
14 island or if it's in a child's bedroom.
15 Inappropriate display is a crime each if the
16 firearm is completely broken or if it's missing
17 parts that could make it capable of firing
18 anything. It's also illegal to deliberately point
19 a firearm at any point. This is so whether or not
20 the firearm is loaded, whether or not it is broken
21 whether or not it contains all the parts and may
22 be incapable of fire and this is so even if the
23 victim doesn't know you're pointing a firearm at
24 hum had.
25 All examples of completely harmless behaviour
26 that's nevertheless the captured in the law by a
27 single discrete enforceable standard so the second
28 related reason we have laws that capture behaviour
29 that may be harmless is to deal with problems of
30 problem.
31 And drunk driving law for instance it's
32 illegal to be care and control of a motor vehicle
33 while um paired. Now, there's no risks associated
34 with being simply behind the wheel of a stationary
35 car none of the harms associated with drunk
36 driving materialize until the car is in motion.
37 Yet proving driving is no part of the offence.
38 Partment is afforded this deference I have
39 described once the threat of harm is identified.
40 If doesn't have to prove certainly doesn't have to
41 prove the degree prove harm to the degree of
42 certainty that I would submit we have proven in
43 this case. Once there is evidence of harm arise
44 from criminalization a good measure of deference
45 needs to be paid to Parliament to set that -- O to
46 set the threshold if I can put it that way and to
47 deal with problems of proof and enforcement.
 35

1 And I think if you look at the historical

2 record and the legislative record here the
3 problems of enforcement were weighing heavily on
4 the minds of Parliament in 1890 and when I deal
5 with my friend he assertions we could address this
6 all through other criminal laws I think this point
7 will be remade.
8
9 Q I turn now to disproportionality My Lord which is
10 at 124 much of the anticipated argument against
11 293 and I think the argument has it has
12 materialized at least in writing may be reduced to
13 this. Jailing harmless polygamists and a
14 disproportionality and will cause more harm than
15 good. So we say that a distinction has to be
16 drawn between the justification of criminalization
17 and the justification of imprison am. This
18 reference is Soli about the former. There is no
19 minimum sentence for polygamy, any question of
20 unconstitution disproportionality must be
21 addressed through charter compliant sentencing in
22 a particular case. No one has alleged there has
23 ever been an appropriate sentencing under section
24 293 in Malmo-Levine the Supreme Court rejecteded
25 idea that marijuana laws unconstitutional because
26 a maximum of seven years imprison the and use of
27 marijuana. The major stated this at 1 # 4 and 1 #
28 5 the requirement of P portion NALT in sentencing
29 under mines rather than advances the appellant's
30 argument. There is no need to turn to the charter
31 for relief against an unfit sentence. If the
32 imprisonment is not a fit sentence in a particular
33 case it will not be imposed and if imposed it will
34 be reversed on appeal. There is no plausible
35 threat express or um replied to imprison included
36 persons including vulnerable ones for whom is the
37 present is not a fit sentence and again as here
38 there is no threat to imprisoned anyone for whom
39 imprisonment no not a future sentence.
40 The question is therefore can the law be
41 justified on its least intrusive application and
42 it's least intrusive application would be without
43 prosecution that is simply serving as denunciation
44 are or an expression of society's abhorence of the
45 practice N O the one hand but through to simple
46 prosecution or absolute or conditional disare
47 charge. Can it be justified on that basis and
 36

1 could it be -- is there in you circumstance in

2 which 5 years imprisonment would be an appropriate
3 and fit sentence. And I won't dwell on this
4 My Lord but I think there's a few fact patterns we
5 discussed in this case anyone would agree anyone
6 agree that five years imprisonment would be a fit
7 sentence for some of the events that we have heard
8 about.
9 Similarly here -- well, similarly here if a
10 sentence of incars ration ways grossly disPO
11 portion national it's a sentence that could not be
12 constitutionally imposed but that's the basis for
13 a challenge to 2933. That would be the basis for
14 the challenge to a sentencing if it ever occurred.
15 . Now, there's further discussion in Malmo-Levine
16 about the consequential impacts of
17 criminalization. And whether there
18 disproportionate. The court in Malmo-Levine said
19 this on this branch of the case the court can only
20 ask whether the effects on the accused are so
21 grossly disportion they render the prohibition
22 once it is determined that Parliament acted
23 purport to a valid state interest in aitment to
24 suppress the use for recreational purposes of a
25 STIEK psycho being an it tiff drug and given the
26 findings of hat flowing we do not think that the
27 consequences in this case trigger a finding of
28 gross largely the product of deliberate dischaps
29 it is fact mass civil disowe peed YENS I will pass
30 over what a Mr. The court said it may be so you
31 effect has to take the nature of this political
32 con felon and SLUKD and this if the court impose
33 as second on conviction that is no more than --
34 that is no more than a fit sentence, which it is
35 require to do, the other adverse KENS consequences
36 really associated with the criminal justice system
37 in general rather that be this offence in
38 particular. In any SCHL criminal law there will
39 be approximates that turn out to be unfounded,
40 that is unfairly adverse. Costs associated with a
41 successful defence. Link heing and perhaps unfair
42 consequences at that CHD to a conviction for a
43 relative live mior offence these are series but
44 part of the social and independent costs having a
45 criminal justice system. Whenever kill such costs
46 will awry rise to UCH FILTHS to the exercise of
47 you are is so overshoot the function of section 7.
 37

1 We say afarther from the consequences of

2 disobedience the challenges assert there are
3 crimes associated with obedience to the law in
4 section 7 that a distinct from the loss of
5 religion freedom. It's threw we accept that owe
6 boying the law requires Canadians avert their
7 desires to arrangements a point where those or
8 marriage-like. The restriction on this freedom to
9 be polygamous has deleterious effects on some
10 persons without doubt. Any criminal law restricts
11 one ability to do as one pleases and all deprive
12 the aspiring criminal of prophets one might gone
13 through the commission of an offence. The point
14 of the criminal law is it holds all to the same
15 standard of behaviour. Neural as I I'm sorry I
16 didn't site but the principles of Johns rolls in
17 fairness and [phonetic] justice was his famous
18 book on the subject was he can test the fairness
19 of the law by putting ourself back in the original
20 before before we mow am imagine what we would
21 agree to as far as laws and rules go before we
22 know whether we're going rich whether we're going
23 to male or female. Or otherwise gifted through to
24 are CHUN what laws would we agree to restrain our
25 activity force the common good. That's the
26 ex-anti-bargain that we would rest STRAB ourselves
27 serving about anyone and we say the polygamy
28 prohibition is just such a bar begin. Agree not
29 to share a husband with wives more equal stable
30 and responsibleable society. At those who see the
31 advantages of being outside this GAR ban as wing
32 more heavy than that be the wooder and the ex-post
33 position whenever is manifest I'm rich now I don't
34 want to live with that original bargain or I'm
35 male the sacrifices are authority toes persons
36 will be greater but that does not I under may I
37 please the legitimacy, in fact, cite the opposite.
38 The it confirms it.
39 At 333 I say this is not to make light of the
40 liberty CLOS the sacrifice is of a preference
41 close to the personal heart of a perpendicular a
42 private desires. At least it can be in the case
43 of at least the pole am arieses but the limitation
44 N those simply says that than two persons cannot
45 enter a form of marriage. Marriage like
46 relationship. This is a we say but shoo you arely
47 given the harms from are polygamy at large it is
 38

1 not a disproportionate one.

2 I turn now My Lord to section 15 (1) equality.
3 And there are two main types of two main grounds
4 upon which the equality right is asserted up with
5 of them is religious discrimination as distinct
6 from freedom of religion under section 2A and the
7 second is dust cripple nation on the basis of
8 marital status and we dealt with that in part in
9 our submissions in CHIEF by saying it it's no the
10 as if he this are arguing polygamous is an now
11 they are Augusting polygamy is be an analysis
12 ground so a person practices polygamy has been
13 identified as an analogous ground and we have a
14 section that ma in the course of my sub misses on
15 section 15.
16 So the AUM's religious discrimination OORTH is
17 basically twofold. First that is describes a kiss
18 cripple in atry effect and second that it
19 describes a discriminatory purpose. We have
20 addressed the purpose of # # 93 # earlier in these
21 submissions. The discriminatory effect it's a
22 difficult to separate a bit of the wheat in the
23 argument in section 15 and one of the
24 discriminatory effects they say is that attorneys
25 general are driven to denying polygamists
26 celebrate birthdays they actual say that was
27 caused by section 293 that it's causally
28 attributed that section 29 leads to that kind of
29 prejudiced attack as they call it but when you cut
30 away the chaff the nub of the section 15 argument
31 we say really overlaps entirely with the section
32 2A argument. And at the end of the day it can all
33 be much more usefully had analysed in that SNEP.
34 We did go TROU our RMGS discrimination
35 argument. On the day that you're submissions on
36 this subject were due, My Lord. The SNEK Supreme
37 Court of Canada as they so often do helpfully
38 clarify the law of discrimination and so we rely
39 on that in our initial opening statement we said
40 of course the jurisprudence strictly requires the
41 identification of a compare to have group and the
42 AIMS came back identify or compare I have to group
43 as mainstream IGS C's the Supreme Court has now
44 swept that at least has diminished the role of a
45 comparitor group in the SDMANLS focussed on
46 questions of inherent dignity.
47 With say at 336 the psychiatric of Canada
 39

1 struggled with are articulating the test for

2 discrimination under section 15 but since the
3 beginning it's been clear that any discrimination
4 analysis involves some comparison using a
5 substantive contextual approach and he with site
6 from Andrews and justice MAK tire there.
7 One of the things identified in law in Canada
8 was that part of the contextual analysis involved
9 an inquiry into whether the differential treatment
10 had a negligent um packet on human dignity.
11 Following the law there was a focus in in
12 Cases was on the identification of
13 comparative group to which the
14 complainant could properly claim unequal
15 treatment.
16 Subsequently the Supreme Court abandoned the
17 human dignity test finding that imposeded an
18 unfair additional burden on claims to establishing
19 discrimination and the Decision of 2008
20 offoutlining the important of law said this at the
21 time several difficulties have arisen from the
22 attempt in law to I am MROEM human dignity as a
23 legal test. There can be no doubt that human
24 dignity is an essential value under lying the
25 section 15 equality FWARN tea, in fact, the
26 presentation of all the rights guaranteed by the
27 charter has as its load star the promotion of
28 human dignity. And they quote just TIS Dixon and
29 Chief Justice DIKS object in observation. The
30 principles essential to a free and democratic
31 society which I believe am body to name but a view
32 with respect to the inherent dignity of the human
33 person, commitment to social justice and eye
34 KWULT, accommodation of a variety wide group
35 identity and faith and social and political which
36 enhas the participation of individuals in groups
37 in sewed.
38 But as a critics have FOINTed out and this is
39 the KAB is an abstract and subjective notion even
40 with the guidance can only become confusing and
41 difficult to apply. It is also prudent to be an
42 additional burden rather than the philosophical
43 enhancement it was intended to be. Criticism has
44 always accrued for the way law has allowed
45 formalism of some of the court's jurisprudence to
46 resurface isn't the farm of on focussed on
47 treating likes and like so the court is cautions
 40

1 depends too forma list suggested that the focus

2 should be not on whether the claimant had
3 established injury to dignity but all contextual
4 factors in the two part test does the based on
5 enumerated or analysis does the create a
6 disstanding ry put P per P PECH waiting prejudice
7 or centre stereotyping on March 4th, 2011 the
8 Court groups holding with that a comparitor group
9 was not strictly required and more general
10 analysis that the courts so REEMENT articulated is
11 this. It follows that a formal analysis based on
12 comparison between between the claimant group and
13 a similar situated group does not assure the
14 result that captures the wrong to which section
15 151 directed. The elimination from the law of
16 measures imposed or perpetuate substantial
17 inequality. What is not formal comparison but
18 selected mere what is required is not formal XOIR
19 is an but elected but an approach that looks full
20 con following the accident including the situation
21 of the and whether the impact of the impugned law
22 is to per PECH YAT disadvantage or negative
23 stereotypes about that group. And I'll pass over
24 the following four paragraphs of the court's
25 quotement but emphasize that idea that we look at
26 the time full context including the situation of
27 the claimant group and that's after we look at
28 where the actual distinction of course is being
29 drawn.
30 In this case I will digress from my written
31 argument my friends are suggested with respect to
32 religious discrimination that the essence of the
33 distinction is religious in this section. We say
34 that the essence of the distinction is on the
35 action. It doesn't burden non-polygamous Mormons.
36 It doesn't burden non-polygamous fundamentalist
37 Mormons. It doesn't burden non-polygamous Muslims
38 or any other religious group. It burdens them
39 only at the point where they perform a particular
40 activity. And so the distinction that may have
41 been swept aside under 2A between beliefs on the
42 one hand and practices on the other we submit is
43 still alive and, in fact, is robust if you try to
44 insert this as an element of the section 15
45 religious equality argument.
46 It's not the distinction that's being drawn.
47 I'll turn to this when I deal with analogous
 41

1 ground.
2 We say even if that distinction were possible
3 even if you were to say that the burdens at
4 fundamentalist Mormons or Mormons per se on the
5 basis their religion then such a distinction is
6 still not discriminatory when viewed in its
7 complete context am I'm at my paragraph 343 #.
8 Section 293 does not reflect despite the valiant
9 efforts of my friends to characterize among other
10 things our questions as prejudice. It does not
11 reflect either prejudice against or the
12 stereotyping of those who practice policewomen for
13 religious reasons it's based on the conviction
14 policewomen constitutes a profound assault on the
15 equality of male and female persons. And is
16 associated with significant risks harmed to the
17 participants to children and to society at large.
18 The other aspect of section 15 is that makes
19 it distinct from section be 2A is that the
20 weighing of interests is definitely definitely at
21 issue in the section 15 stage it may have been
22 some early controversy about this but which have
23 letter sets it state if it HEPT been set straight
24 the ameal in the middle of 344 SPT mull till
25 policety colour the discrimination analysis.
26 Women and children are in particular who are
27 members of religious groups practising policewomen
28 benefit from the prohibition from the harms of
29 polygamy weighed in the balance. So of course do
30 other vulnerable members of society.
31 Those things are appropriate to consider at
32 the section 15 stage.
33 There's fairly analogous case My Lord the --
34 because I mean the essence of the -- of the
35 argument must be that even if this is targeted as
36 polygamy and not as fundamentalist Mormons that
37 well fundamentalist Mormons are a lot more likely
38 to be polygamous than mainstream Christians for
39 instance. So it is a disproportionate burden upon
40 them or more likely it's a burden more likely to
41 fall perhaps I could do it that way on
42 fundamentalist Mormons so it's fairly analogous to
43 the Alberta Hutterian case are with of course the
44 members of the Hutterite community were saying
45 that the requirement that they have their
46 photographs on identification was a violation of
47 their religious rights. Clearly the requirement
 42

1 for photographs was something that burdened them

2 in a way it didn't burden mainstream Christians or
3 other persons that didn't have objections
4 religious or otherwise to and it's interesting
5 what Justice McLachlin said assuming the
6 respondents could show that the regulation creates
7 a distinction on the enumerated ground of
8 religion, it arises not from any demeaning
9 stereotype but from a neutral and rationally
10 defensible policy choice.
11
12 And she also said and we quote this at paragraph
13 347 there is no discrimination within the meaning
14 of Andrew v. Law Society as inspect Capilano. The
15 colony member's claim is to the unfettered
16 practice of their religion not to be fry free from
17 religious discrimination. The substance of the
18 respondent's section 15 claim has already been
19 dealt with under section 2A. There is no breach
20 of section 15 (1) and I think that's just as apt
21 it the case at law. What they are asking here is
22 for the unfettered practice of their religious
23 which is conflicts it doesn't have to do with
24 freedom from religious discrimination.
25 I turn now My Lord to discrimination on the
26 basis of marital status.
27 We say section 293 cannot be said to violate
28 section 15 (1) on the basis of mayor tail status
29 either the Supreme Court may have accepted that
30 marital STAUS is it analogous ground for the
31 purpose of section 15. However, there is no
32 indication in had the jurisprudence that the
33 analogously protected group should be understood
34 to include persons who are engaged in mayor tail
35 relationships that are otherwise legitimately
36 prohibited by the Criminal Code RAG the test for
37 establishing analogous ground was TASHed in core
38 beer [phonetic] v. Canada. Where the majority
39 wrote it seems to us that what these grounds have
40 in common they were discussing the enumerated
41 grounds -- is the fact that they often serve as
42 the basis for stereotype KL decisions made not on
43 the basis of merit but on the basis of a personal
44 characteristic that is immutable or changeable
45 only at an unacceptable cost to personal identify
46 it this suggests that the thrust of identification
47 of analogous grounds at the second stage of the
 43

1 law NALs is to reveal grounds based on KRISHG

2 particulars that can he within the change or that
3 the government has no legitimate interest in PT
4 expecting to outside change to receive equal
5 treatment under the law.
6 In other words, if the Court accepts that
7 there is a reason to distinguish polygamous
8 marriage for instance on the basis of harm, then
9 PRASHer of polygamy can want be an analogous
10 ground for section 15 purposes either in under
11 marital is it an outside or otherwise.
12 So I'll go My Lord now to my reply submission.
13 At page 6. Because in my friend's submissions he
14 did express what we sort of anticipated what is
15 being argued more formally at any rate so we say
16 polygamy is not analogous ground be and I'm at my
17 paragraph 14 of reply My Lord says that the
18 characteristic of being polygamous must be
19 recognized as analogous ground under the charter
20 section 15. The apple Amicus acknowledges that in
21 order to establish this argument he must show that
22 polygamist have the indicia of analysis not only
23 that polygamists relationships are value to
24 polygamists identify it Is we say this is a
25 qualification that is never in itself support of
26 the constitutional equality right but also that
27 first polygamists are historically disadvantaged
28 group and second that the characteristic of being
29 polygamous is immutable.
30 The latter two indicia we say are in the case
31 of polygamy absent. Polygamists we say are not at
32 historically disadvantaged group and we ask the
33 court to KOOEP in mind in an in this section the
34 Amicus is argue that is polygamy per se the
35 characteristic of being polygamous is analogous
36 ground so the question is not whether for instance
37 fundamentalist Mormons or Aboriginal persons are
38 historically disadvantaged. That would be a
39 different -- that would be a different challenge.
40 It's a different aspect of their challenge at
41 least with respect to Mormons.
42 The question is not whether those persons are
43 historically disadvantaged but whether polygamists
44 within those groups are historically disadvantaged
45 because that's the basis on which the distinction
46 is being drawn and that's the basis on which the
47 distinction is being asserted for analogous
 44

1 grounds purpose and we say most of that evidence

2 is to the contrary. The anthropological is
3 partially polygamous with with polygamous
4 overclassed with you about a great majority of the
5 married population being monogamy mouse experience
6 with witness after witness describing as Dr. Beall
7 put it acacy system within the polygamies in the
8 FLDS both male and pile are polygamists may enter
9 the highest level super their month agoists are
10 single co-religionists male O female can want.
11 Winston Blackmore the wealthy third generation man
12 has at least 25 wives. James Oler the wish on of
13 the Warren Jeffs side has five and no one quoting
14 according to the data from the FLDS has more than
15 him. Jeffs himself was supposed to have had over
16 80 cross culturally the message is the same
17 polygamy is for the relatively privileged and
18 powerful men in a PRIJS as the Amicus has
19 witnessed Dr. Shackleford put it agreeing with the
20 rightings of Stephen PIVENGer and liquor are a
21 Betsig polygamy is available own to those men who
22 can afford its costs and for women assuming that
23 it's purely con SEN HUL it's available to those
24 who consider it to be advantageous compared to the
25 available alternatives.
26 Although on the attorney's view women in
27 polygamous RAEPGSs are disadvantages through an
28 increased relative risk of mental health problems
29 the Amicus denies that such disadvantages exist or
30 if they do exist they are caused by polygamy
31 per se. So such burdens are no the what the
32 Amicus asserts as the historical disadvantage
33 suffered by polygamists as such. What is the
34 historical disadvantage suffereded by polygamists
35 at such? The only one really identified as
36 visited on polygamists as such that argument is
37 made in paragraph 256 of my friend's submissions
38 where he says this is so because polygamy is
39 criminal and polygamists suffer other legal
40 impairments such as never having their unions
41 legally recognized.
42 We say this argument chases it's on tail
43 My Lord because it would mean this everyone
44 inclined to a behaviour being historically
45 criminalized GAM BBLing bar fights murder or
46 otherwise heally burdened is a member of a history
47 KL disadvantaged group simply bass the law frowns
 45

1 upon the activity it's circular.

2 And second My Lord we say that polygamy is not
3 an immutable characteristic. And my friend in an
4 inspiring moment in his argument says that our
5 hearts are not governed by our heads. And we say
6 that may occasionally be true but there is no
7 evidence that a predisposition toward the form of
8 polygamous marriage is anything more than how the
9 expert psychologists in this case have described
10 it an advantageous strategy that is available to
11 those with the resources and the inclination to
12 pure sue it. STOES who can Shackleford put it
13 afford the costs.
14 And by that I think it's clear he meant social
15 as well as economic costs.
16 Indeed Dr. Shackleford a psychologist who is
17 extensively studied human multi partner mild
18 traumatic meating behaviour he's the only expert
19 to have public published peer reviewed material in
20 the field predicted that individuals decisions to
21 adopt polygamy if the practice were decriminalized
22 would be at least in significant part determined
23 by a desire to imitate the behaviour of other more
24 socially prominent polygamists you recall he said
25 he didn't think it would spread because there
26 weren't enough high status practitioners of
27 polygamy in society.
28 This view we say seems difficult to reconcile
29 with the Amicus's notion of immutable. And to the
30 extent that immutable is beyond psychological eye
31 mutability if I can put it that way, innate
32 behaviour to the extent that it's beyond that to
33 the extent that it's something that is a trick
34 that cannot be changed without great personal cost
35 to the individual that is expressed in my
36 submission Soli through its religious
37 manifestation that religion is one of those things
38 that can't be changed except without great cost to
39 the individual and to so it that extent to the
40 extent there is any traction to this argument at
41 all it simply goes back into the section 15
42 residential discrimination argument which in turn
43 flows back into 2A.
44 We say no doubt some people find multiple
45 partners of various description to be the natural
46 order of things I'm talking about non-religious
47 policewomen or polyandry at the threshold the
 46

1 anthropological record support that it is natural

2 for individuals O polygamy over monogamy where
3 conditions make it advantageous. But of course
4 the same might be said of oweers sieve sex even
5 homicide. We don't ban these crimes because no
6 one is inclined to their commission we ban them
7 because at least in part because some are and we
8 ban them even if that inCLI THAGS is passionate
9 andover WHEM amming governed as the amicus would
10 say by the no heart not by the head PRA.
11 There's one FOINL point he makes on immutable
12 and that's a reduced to a sing assertion at his
13 paragraph # 265 and he says this. Every
14 polygamous relationship that a participant does
15 not wish to leave is truly immutable for the
16 purposes of section 15. It is of such importance
17 to the participants that they would suffer the
18 laws disadvantage rather than give it up indeed
19 polygamists in Canada continue to practice
20 polygamy precisely because their polygamous
21 relationships of such importance it them. We say
22 this is a revealing definition and perhaps a
23 curious test of immutable and it's entirely
24 unsupportable if it were truly the test then any
25 behaviour a person would perP pursue in the face
26 of is immutable for section 15 purposes a
27 propensity of violence is similarly analogous
28 ground would be the inveterate racism to as indeed
29 would be a willing to risk prosecution for any
30 criminal activity. Conscious deliberate KRILT
31 would be proof of eye mutability recidivism of
32 discrimination and equality preach would be found
33 itch SCHL prohibition in the face of defiance.
34 It's revealing we say in it's closing
35 submission that the Amicus suggests that the
36 Federal Government may justifiably discriminate
37 I'm sorry, My Lord, I see the time I'm just about
38 to finish this section.
39 THE COURT: That's fine. Jones JOPS may justifiably as
40 such. This is very interesting passage in husband
41 response to the attorney's suggestion that Canada
42 might become a target for polygamist immigration
43 should section 293 be struck or repealed this is
44 what he says he says it is well within
45 Parliament's constitutional authority to amend
46 immigration legislation to and express ground of
47 inadmissibility. We say this is a remarkable
 47

1 position to take because it can only be premised

2 on the whied that polygamy is of sufficient
3 concern that the prevention of its spread can be
4 justified under section 1. And the Amicus is only
5 available -- is only able to explain this apparent
6 inconsistency on the basis he says non-sit sins do
7 not have an unqualified right to enter or remain
8 in the OUNtry. Well that's not the issue. The
9 question would be whether Parliament would have
10 the right to enact a law that allowed admission to
11 the country on the discriminating on the basis of
12 a genuine analogous ground and clearly they would
13 have.
14 You could say that no immigrants have the
15 right to be here. But if you're going to let them
16 in you can't say no black immigrants you can't say
17 no female immigrants. That would be
18 discrimination. And the section 15 rights are
19 intact so if polygamy is harmless or if it
20 immigration presents no threat to its spread what
21 possible justification would the Federal
22 Government to have to discriminate against
23 polygamists the Amicus does not explore this
24 question further before I leave that point My Lord
25 I will say one more thing about this immigration
26 assertion because it's kind of related to what we
27 were discussing earlier about the legitimacy of
28 broad laws.
29 One of the crucial questions here is
30 definition. The Amicus proposes a law that would
31 bar polygamists. It would be interesting to hear
32 him say how for the purposes for that proposed law
33 he would define polygamy. He also proposes a law
34 against forced marriage and it would be
35 interesting to here law he defined marriage for
36 the purposes of that law. I suggest that a
37 definition that he would come up with that would
38 be workable would probably be of a breadth similar
39 in either instance to the definitions that we're
40 proposing here.
41 Thank you, My Lord. I don't expect to be very
42 much longer after the break WOORT you think that.
43 It # 2 o'clock.
44 THE CLERK: Order in court. Court is adjourned until 2
45 p.m.
46
47 (NOON RECESS)
 48

1 .
2 THE COURT: Mr. Jones.
3 MR. JONES: Thank you, My Lord beginning now under
4 justification under section 1. And that's on page
5 134 of my written submissions and we're all
6 familiar with the language of section 1. There's
7 no question that this is prescribed by law. This
8 as legal prescription that's at issue here. So
9 we'll move very quickly to the pressing and
10 substantial concern of the oaks test.
11 And we say that this and the next section
12 which is rationale connection are infused with the
13 way of harm that is if there is harm from polygamy
14 or the reasoned apprehension of harm then there is
15 a present and substantial concern under the first
16 branch because the measure in question is a
17 criminal prohibition it follows virtually
18 automatically once the harm of polygamy is
19 demonstrated measures to prevent the harm of
20 rationally connected for charter purposes and I
21 will deal with that in the next section because
22 that is controversial in this case.
23 Harm has a particularly important role in the
24 context of criminal law to justify criminalization
25 the Attorney General must show the reasonable
26 apprehension of a harm that is not insignificant
27 or trivial and once that is done the precise
28 weighing and calculation of the nature and extent
29 of the harm is Parliament's job we say on the
30 evidence this requirement is met and far exceeded.
31 The second branch of theest is rational
32 connection. There must be a reasonable
33 apprehension of a causal link. The rationale
34 connection requirement is satisfied we say
35 paragraph 3 # 56 where this is a link or nexus
36 based on an and in accordance with reason between
37 measures enacted and the legislative objective
38 it's not necessarily a question of evidence it's a
39 question of whether it's reasonable to apprehend
40 that nexus or link.
41 And over the page in Butler the majority wrote
42 this. Accordingly, the rational link between
43 section 163 that was the obscenity provision and
44 the objective of Parliament relates to the actual
45 causal RAEPGS between obscenity and the risk of
46 harm to society at large. On this point it is
47 clear that the literature of the social sciences
 49

1 remains subject to controversy.

2 And I just want to ask Your Lordship perhaps
3 to underline what they said about the causal
4 relationship between obscenity and the risk of
5 harm to society at large so we've been talking
6 about the risk of harm with respect to direct
7 harms. We haven't really discussed that with
8 respect to the indirect or social harms and what
9 the standard is, what the threshold is. And the
10 threshold isn't that there will definitely be a
11 harm. The threshold is whether it's reasonable to
12 apprehend that there would be -- there is a risk
13 of harm. A chance of bad things happening.
14 You remember on that subject with respect to
15 spreading through society and I'll return to this
16 but even Dr. Shackleford who was the most
17 sceptical of polygamy of catching on in the
18 mainstream said it was terribly terribly unlikely
19 with you it was plausible while a direct link
20 between obscenity and harm to society this is the
21 Butler court continuing may be difficult if not
22 impossible to establish it is reasonably to
23 presume exposure to images bears a causal
24 relationship to changes in attitudes and believes
25 in Irwin toy and keying extra as well as number of
26 other decisions for the proposition that
27 Parliament need openly a reasoned apprehension of
28 the causal link. This was reiterated by the court
29 in you the tear YAN brethren and I will just start
30 halfway down through paragraph 8 # 48 of that
31 case.
32 To establish a rationale connection connection
33 between infringement and the benefit sought on the
34 basis of reason or logic. The rational limits
35 being imposed on rights arbitrarily. The
36 government must show that its reasonable to
37 suppose that the limit may further the goal, not
38 that it will do so.
39
40 The test of rational connection is not
41 particularly onerous. As justice lamber as he
42 then was pointed out in the prostitution reference
43 if the object of criminal law is to reduce the
44 harm from the crime, then it is virtually inso
45 facto rationally connected regulated or prohibit
46 the cause is psychiatrist one method of
47 controlling its effects a piece of legislation
 50

1 that proceeds upon such a premise does in my view

2 exhibit a rational connection between the measures
3 and the objective.
4 Now of course the Amicus and the other
5 challengers suggest that there is no rational
6 connection between the law does not reduce
7 polygamy and section 293 is thus unrelated to the
8 purpose of the law, the reduction in polygamy's
9 harms. In other words, the challengers say that
10 justice lamber's formulation only holds true if
11 there is a cause and effect relationship between
12 the prohibition and reduction. If this is the
13 argument we say it is incorrect. It is the
14 connection with polygamy and harm that is relevant
15 to the analysis not the connection between the
16 prohibition and the amelioration.
17 Then we turn to the RJR McDonald case. Where
18 the court was satisfied that the targeted activity
19 tobacco consumption caused massive social harm
20 what was far from certain in that case how far was
21 that the criminal rest stringses on advertising
22 would reduce that consumption and that was where
23 the vast majority of the evidence that the expert
24 evidence was focussed.
25 What the majority in RR argued infer causation
26 and therefore mitigation through reason logic
27 rather than strict proof and they recognized in my
28 submission, My Lord, that in these questions of
29 broad social harm it's another point of deference.
30 The life of the law is not logic but experience
31 and it's the experience in part of the population
32 and their elected representatives that needs to be
33 reflected in decisions as to which harms are
34 reasonably apprehended and which aren't.
35 Over the page just the top the last paragraph
36 in this RJR quote while the contradict link
37 between obscenity and MARM to society may be
38 difficult if not impossible to establish, it is
39 reasonable to presume that exposure to images
40 bears a us Canadaal relationship to changes in
41 attitudes and beliefs.
42
43 Now we say the challengers RAL Ron the lack of
44 prosecutions to argue for section 293's
45 ineffectiveness. I think we'll hear much about
46 the ineffectiveness argument. They say there's
47 only been two convictions under the polygamy in
 51

1 its entire 120 year history and prior to the

2 AGBC's Blackmore and OERL the last prosecution
3 occurred in 1937 that's all true.
4 The answer to this argument is provided by the
5 Supreme Court of Canada in RV Lucas. There the
6 Court held at paragraph 5 a 5 the appellant's
7 argued that the provisions can't be an effective
8 way of achieving the objective. They contended
9 that this was apparent from the fact that criminal
10 prosecutions for defamation are rare in comparison
11 to have I sill suits. However it has been held
12 that the paucity of prosecutions does not
13 necessarily reflect on the seriousness of the
14 problem," rather it might be affected by a number
15 of other facts such as the priority which is given
16 to enforcement by the police and the Crown. There
17 are numerous provisions in the code which are
18 rarely invoked such as theft interest oyster beds
19 provided to are in section 323 or high tree SOIN
20 under section 46 yet the infrequency of
21 prosecutions under these provisions does not
22 render them unconstitutional or ineffective. I
23 agree that the small number of prosecutions under
24 section 300 may well be due to its effectiveness
25 in deterring the publication of defamatory libel.
26
27 So this introducing the questions of deterrents
28 and the core of their argument is that there is a
29 subsisting level of polygamy and the polygamists
30 that are doing it are going to do it anyway and
31 nobody else is going to do it regardless of what
32 you do about the law so the law is both
33 unnecessary and ineffective.
34 So discussing section 293 as a deterrent the
35 challenges assert that historically section 293
36 was not acting as a deterrent was never prosecuted
37 and yet polygamy still did not flew reddish. We
38 say of course the Parliament is not required to
39 demonstrate that a criminal activity would have
40 been more prevalent had it not been criminalized
41 but even if it were necessary the evidence here is
42 the law has functioned activityly as prove lack
43 particular and deterrent and if upheld it would
44 continue to do so.
45 So we return in the following paragraphs
46 My Lord to the historical account that we gave and
47 I'm not going to go through this in great detail
 52

1 but I would recommend Your Lordship to the written

2 account here again no element of this account is
3 called into question by any of the challengers.
4 So what we FWHOE in summary to recap is that in
5 1888 and 1889 the Mormons began to establish their
6 presence in southern Alberta petitioned the
7 government to allow the practice of polygamy
8 there, were denied and overwhelmingly despite the
9 huge growth of their settlement obeyed the law
10 that even the ones who were polygamous did not
11 practice polygamy in Canada.
12 We also know that the threat of prosecution
13 was one of the tools used for dealing not the main
14 tool but one of the tools used for dealing with
15 polygyny among First Nations. And we also know
16 and it's uncontroverted essentially in the first
17 half of this century there is no documented
18 polygamy in had Canada. And we would say that
19 that is robust indication of the effectiveness of
20 the criminalization of polygamy of the Federal
21 Government's immediate and categorical approach to
22 the problem that's reflected in that absence so we
23 say at page 376 far from being a dead letter this
24 is paragraph 376 I'm sorry it would appear the
25 1890 Canadian polygamy and bigamy laws backed by
26 threats of rigorous enforcement by the Federal
27 Government have precisely the effect that Sam
28 steel of the northwest mounted police had wished
29 for in his report of 1899 that prevented the
30 practice of polygamy from gaining a foot hold on
31 the Canadian frontier as it had in Utah territory
32 and prerevolutionary Mexico and the response in
33 Mexico you recall My Lord the LDS church sent
34 delegations first to Mexico and then to Canada
35 response of the Mexican authorities they basically
36 said we got this bigamy law but you do it quietly
37 and we're not going to bother you come and SELTS
38 and of course polygamy flourished in those Mexican
39 communities where it was overlooked if I can put
40 it that way.
41 So that's the historical context that leads us
42 to the establishment of Bountiful the first modern
43 community of polygamy.
44 So the related question begins at 143 and
45 that's would polygamy increase in the law were
46 struck down and it is core, it is central it is
47 pivotal in my submission to my friend's argument
 53

1 that there would be no increase in the practice of

2 polygamy were it decriminalized.
3 Now, I have already suggested why on the cases
4 that's not legally relevant but even if it were
5 let's explore what the evidence is on that.
6 We say reason and logic indicate that some
7 persons will take up the practice of polygamy if
8 it were not criminally barred. There are -- there
9 is also considerable evidence on the point. We
10 say that evolutionary psychology supports the idea
11 that polygyny is for men who can afford it and
12 angle vows meating strategy partners and still
13 adequate investment in it its offspring if it the
14 principal tenets of evolutionary psychology are
15 correct and these were never questioned under
16 cross-examination the principal tenents of
17 evolutionary psychology there's a question about
18 the degree to which they can overcome pi social
19 trends certainly but if these principle it will
20 tenants are correct humans will have an tendency
21 just a tendency. Both experts in evolutionary
22 psychology and Dr. Henrich considered the
23 phenomenon of serial monogamy so essentially
24 younger women to be suggestive that males are
25 adopting essentially MRIJS meating strategies to
26 the STEPT they are legally and socially able.
27 Dr. Shackleford agrees laws have been enacted to
28 by imposing costs on it and of course polygamy is
29 an extreme example of that paragraph we have other
30 and one of the costs imposed is criminalization.
31 And there were some experimental data behind
32 that Dr. Shackleford of course who wasn't
33 introduced as an expert on this subject although
34 he was, in fact, an expert on this subject you
35 remember we went back and found N article that he
36 had written about 10 years ago and it wasn't each
37 looking for polygamy for preference for polygamy
38 and yet it found it. It found it in his survey of
39 university students and in his study we pointed
40 out to him over 5 percent of the male respondents
41 indicated their ideal meating behaviour would
42 involve SMUMENT marriage between two and 10 women.
43 And this percentage Dr. Shackleford recalled under
44 cross-examination he thought if anything low
45 because he thought that sort of social pressure
46 would depress non-monogamous answers to his quiz
47 so he thought 5 percent was low but it was still
 54

1 there and then we confronted him confronted is

2 props the wrong word we asked him about c
3 Henrich's impromptu quiz of his female third year
4 70 percent of whom said that he given the choice
5 between going a second wife of a billionaire or
6 the only wife of an otherwise identical middle
7 class man they would either very likely or
8 certainly choose the billionaire a rate that
9 Dr. Hen is reddish and Dr. Shackleford thought
10 surprisingly high. The Amicus's expert said under
11 cross-examination he thought 17 percent would be
12 perhaps a more expected figure and of course these
13 are you know university SUNTs third year
14 university students women with presumably the
15 highest level of choice in life path and society.
16 And I asked the question but nevertheless it
17 doesn't surprise you that a significant portion of
18 even well educated presumably successful and
19 unlimited option university women would select
20 that option given those choices and he said no.
21 It doesn't surprise me. Yes
22 THE COURT: A bit ambivalent.
23 MR. JONES: The experts quite properly were reluctant
24 to rate polygyny might spread in the mainstream if
25 permitted Dr. Henrich agreed it was unlikely to
26 turn Canada into a significantly MRIJS society
27 immediately but considered in 50 years it's not
28 trivial adoption and a loss of ground on women's
29 equality and other factors that go with it. It
30 was very plausible and he held this position in my
31 submission in the face of vigorous
32 cross-examination by both the Amicus and the BC
33 civil liberties association.
34 And Dr. Shackleford as we know the Amicus's
35 expert was ambivalent on the one hand he said he
36 generally agreed with Stephen Pinker's statement
37 that what if polygyny is allowed men seek
38 additional wives and a means to attract them. He
39 noted however there were presently no high status
40 polygyny NOUS role month agos and the present
41 practitioners of polygamy seem to have, in fact,
42 little social status. This he considers a factor
43 million gaiting against the spread or at least
44 against as rapid a spread and when pressed on the
45 question c Shackleford in North America is
46 plausible terribly terribly unlikely but
47 plausible. Nevertheless almost in the next
 55

1 breadth he agreed that of men who could afford the

2 costs some would pursue it.
3 There's some very curious evidence from
4 Dr. Jon Walsh who was the FLDS's expert on
5 religion.
6 THE COURT: Sorry, if you would include as well the
7 evidence of the French experiment?
8 MR. JONES: Well, yes. I deal with that under
9 immigration, My Lord because I think that was the
10 principal source. Although of course once it has
11 a foot hold in the community I think the
12 reasonable expectation is that it would have a
13 domestic spread as well as a purely imported
14 element.
15 THE COURT: Sorry. I interrupt.
16 MR. JONES: Not at all. It was the VLTS AME expert
17 Dr. Walsh who appeared most enthusiastic about
18 polygamy's you remember Dr. Walsh his enthusiasms
19 were the subject some discussion and so I take
20 what he says with a bit of a grain of salt as a
21 result of that he's the one as URLT that couldn't
22 remember whether he had had actually -- whether he
23 had actually written that strange dialogue to
24 recruit people into the practice of polygamy. So
25 I can't attribute that absolutely to him but it
26 was curious nevertheless that he couldn't say that
27 he hadn't written it.
28 At any rate so I take what he says with a bit
29 of grain of salt but his evidence was this and
30 this was under direct examination. We certainly
31 weren't prying this out of him.
32 And has that from a theological standpoint has
33 that position that's the position of the church on
34 polygamy has it changed or evolved over time
35 within the LDS church?
36 A He said this, it's never officially changed I
37 object formally you would say possibly listen the
38 LDS church TOOTD there are two major groups I
39 cooperate put an exact number whether it's
40 fifty-fifty or # 040 but they are both substantial
41 groups won group would like the return of polygamy
42 and believe that's a holy principle that should be
43 internally practised another large group probably
44 each larger than the first group would like to see
45 polygamy not returned. They believe it's an
46 archaic practice and so they would like it not to
47 return.
 56

1 So there we have the only evidence given by an

2 expert on the potential for the spread polygamy
3 among mainstream Mormonism. Of course I believe
4 there are tens of millions of Mormons worldwide
5 certainly millions in North America. 100,000 in
6 Canada to the best of my knowledge and he says
7 between 40 and 60 percent of them are looking
8 forward to the return to the decriminalization --
9 the return to polygamy.
10 At any rate, whatever weight one can give to
11 Dr. Walsh's testimony on this point it's clear
12 that the wealthiest and more powerful
13 fundamentalist Mormon leaders accumulate many
14 wives exchange we've got gone through the list,
15 80, 660, 20, 15 of the current leader Rowena now
16 ROBLly 30. This is hyper polygyny and of course
17 the preconditions for this are present in north
18 ESHG many with the excessive disparity of wealth
19 and status. This coupled with an already
20 established group of polygamists including hyper
21 polygamists suggest that polygamy's practitioners
22 would have an even greater impact in cultures
23 where wives are generally few. Dr. Henrich
24 concluded had in IS COMBIKS theory and evidence is
25 correct legalizing all forms of polygamy will
26 principally result in the an careen he is MRIJS
27 marriages by wealthy prestigious men and I would
28 is submit my friend makes TIS continuation between
29 legal lay LAGS and I would say when Dr. Hen
30 refresh my recollection uses the term legalize it
31 he's using it in the sense Bob Marchly uses it.
32 Decriminalize it.
33 Dr. Whoa the University of Victoria
34 demographer confirmed he had no knowledge of
35 polygamy or it's potential for expansion. The
36 expert MRIs call rejected the Amicus's suggestion
37 that perhaps are closely zig and dome MREKS
38 society such as Canada. Dr. Grossbard
39 emphasizeded experiment in France where a 13 years
40 window led to a community of # 200,000 members a
41 point made in the Quebec conceal report discussed
42 later. And we through in I suppose largely
43 anecdotal type evidence that the ask strong NUFD
44 to even lead people to convert to unfamiliar
45 religions and we site the example from India where
46 there's been a concern of a Hindu's particularly
47 high status Hindus converting to Islam for the
 57

1 purpose of second wives. Either as an alternative

2 to divorce or as a form of polygamy.
3 If the challengers succeed here of course we
4 say such artifice would not be necessary MRIs
5 marriage would be available regardless of believe
6 are or religion practice but the fact that persons
7 are willing to change religions to facilitate
8 polygamy indicates that the domestic adoption of
9 the practice should not be discounted.
10 If there is a characteristic comparing
11 religion to polygamy of eye mutability then
12 there's certainly an argument that the drive to
13 polygamy is as immutable if not more so than the
14 drive to religion.
15 But in any event, of course we say it is
16 possible that the evolution NAER psychology model
17 is incorrect and the apparent robustness and the
18 practice of polygyny is related to cultural
19 factors essentially of men and women in such a
20 case the argument goes we need not worry about
21 polygamy happening here and so in fairness we set
22 out an article by two economists who make that
23 very suggestion.
24 We at an is his in the reassuring for several
25 reasons. Even if it were attenuated with the
26 development and equality of women parity between
27 the sexes economic social and political is hardly
28 a completed project in Canada. You might remember
29 My Lord I think it came up in this the examination
30 of Dr. Shackleford perhaps and Dr. Henrich that
31 the delightful quote from Laura Betsig's article
32 would you rather be the NIRD wife of JFK or the
33 first wife of bow so the clown. That was the
34 economic -- the traditional economic view of
35 women's choices. And as long as women's choices
36 are fewer than mens then even if this is all being
37 driven bring social factors until we had perfect
38 equality we couldn't expect -- we couldn't examine
39 PT that to overcome.
40 Second we say it seems uncontroversial that
41 the factors that athe certificated it attenuate to
42 economic development are not equally distributed
43 throughout the country there are are communities
44 where women's rights are not cultural ry
45 recognized even if they legally exist and it is
46 among these communities that polygamy can be
47 expected to spread.
 58

1 Third, polygyny can can spread rapidly even

2 where women and children are accord the fullest
3 legal rights and this is the thought experiment
4 that I averred to earlier I say it couldn't happen
5 here. We point to Bountiful look at where it was
6 in 1947 and look at where it is today. It
7 happened here.
8 We then turn to the question of immigration
9 and my friend the Amicus Canada would become a
10 destination a preferred destination. We know of
11 course that Canada is a preferred immigration
12 destination from the developed world including
13 from countries where polygamy is practised. And
14 very early on My Lord we put in through the
15 Brandeis brief a survey called what the world
16 thinks of Canada. Canada and the world in 2010.
17 I am DPRAGS and diversity and that was an insuss
18 Reed institute and it says essentially what you
19 would expect it to say that among the sampling of
20 countries I think there was a dozen or more
21 countries some that you would recognize as being
22 cited as countries are polygamy is practised.
23 Canada is a favourite destination. There is no
24 reason to think it wouldn't be the description,
25 the only game in town as Dr. Henrich put it for
26 polygamist families is we give the lesson of
27 France as instructive this 13 year window of and
28 my friend will quarrel with my characterization of
29 it as decriminalization but it was essentially
30 where they changed their legal framework to
31 embrace the immigration of polygamous had families
32 the reif you knowfication of people who had been
33 restricted on the first instance from bringing
34 multiple wives and their families into the country
35 and they removed that.
36 And we say that that on the available evidence
37 is a cautionary tale it's a cautionary tale and it
38 shows the danger of approaching decriminalization
39 as a sort of harmless liberal social experiment.
40 This is something that once undone -- once done
41 will be very very very difficult and very
42 destructive to undo.
43 And aside from the third world of course we
44 say that there would be immigration from
45 polygamists presently in the United States include
46 you fundamental liMormons and others Dr. Walsh
47 says is uncleaned to the question and other
 59

1 western countries so fundamentally Mormons or

2 other polygamists in England or Europe or
3 elsewhere would also view Canada as a preferred
4 and the question again is whether that accords
5 with reason and logic. And we say that it does.
6 That it accords with reason ask logic that
7 there is a risk that there is a risk of its
8 non-trivial spread essentially in particular
9 communities within the country but also within the
10 mainstream population as a whole. And that's all
11 we would need to show on that.
12 I turn now My Lord to the question of minimal
13 impairment. And this like overbreadth, in fact,
14 is very SM I will to overbreadth on section 7. Is
15 really in had my submission at the end of the day
16 the question that is before Your Lordship. Very
17 early on in these proceedings I said that there
18 really two categories of arguments here. One of
19 them is whether you can have any law against
20 polygamy. And even the CPAA says that you can. I
21 think even the BCCLA says that you can.
22 That's the first question. The second
23 question and I think we're way over the threshold
24 on that one. The second question is whether this
25 is the right law. Whether this is the right law.
26 Whether it's carefully tailored whether it's
27 overwith broad under section 7 or minimally
28 impairing under section 1.
29 The challengers present two arguments under
30 minute ma'am impairment much the first is the law
31 is unnecessary because the harms of polygamy can
32 be addressed through alternative means. The
33 second is that if a polygamy law is justified it
34 could capture less than the present law does.
35 This is another iteration of the over breadth
36 argument already addressed in the submissions in
37 the context of section 7. Let me deal first with
38 alternative means. The challengers to section 293
39 say the problem is youth of brideses O erosion of
40 women and children's rights then why not rely on
41 laws against those activities instead of the
42 polygamy prohibition or modify them or extend them
43 as indeed my friend extends that invitation and
44 suggested we should have a law against forced
45 marriage.
46 We say legally speaking this assertion of
47 implies partingment is restricted from imposing
 60

1 complimentary measures to address social harms and

2 Sharpe the accused argued if the problem is
3 exploitation of the manufacturing the solution is
4 the enforcement of laws defence that activity.
5 This idea of market reduction TASHTHed by the law
6 against simple possession was unnecessary.
7 Chief Justice said this an effective be SMUD
8 not be discounted simply because Parliament has
9 other measures in place. It may provide
10 additional protection or reinforce existing
11 protections. Parliament may combat an eye I will
12 have by enacting a be a directed to different
13 aspects of the targets problem. Here the amply
14 establishing criminalizing not only provides DASHL
15 protection against child ex-employ at an
16 exploitation associated with the production of
17 child pornography for the market generated by
18 possession of the availability of material
19 attitude NAL change in grooming but also
20 reinforcing the laws criminalizing the production
21 and distribution of child pour no gray if I and
22 keep in mind they are talking about child
23 pornography it has nothing to do with children
24 paintings for instance digital representations in
25 place is only an answer to the extent that such
26 crimes are reported investigated and prosecuted.
27 This is obviously not the case and fact the
28 KIEMS and Amicus would rely as alternatives sexual
29 exploitation, sexual assault reasonable grounds
30 trafficking and persons and so forth are both
31 under reported and difficult to investigate and
32 prosecute and this is particularly true within
33 insular population or closed religious communities
34 where polygamy is most likely to prosper. And
35 this was reflected in the court's decision in Utah
36 Utah Supreme Court in state and green I'll read
37 the underlining passage we've already looked at
38 their summary that it was polygamy was attendant
39 with these other crimeses given the highly private
40 nature of sexual abuse and self imposed of
41 polygamy communities prosecution may well prove
42 impossible. This wall of silence may present a
43 compelling justification for criminal liesing
44 prosecuting OVENTDers and effectively tiffly
45 breaking down the wall that provide a favourable
46 and sexual abuse can thrive.
47 The evidence in this case of what happened in
 61

1 Bountiful and particularly the most recent

2 evidence that is bracing and shock even as my
3 friend's acknowledge the most disturbing aspect of
4 this may well be not that there were perpetrators
5 of child abuse and child exploitation and child
6 trafficking but the universal aquay he sense of
7 the community in that activity and you remember
8 witness 4 I asked her about who a teenager would
9 turn O to she was a teen IJ area when when
10 married. Who she would turn to if she felt this
11 was a bad thing well I would go to my husband and
12 yes but your husband agreed with it. Yes then I
13 would go to the church leaders and never anywhere
14 outside. And then I asked her whether anyone in
15 the community first of all the school had ever
16 expressed any concern at all that there was a 15
17 year old girl who had been brought up from the
18 States and she said no why would they be mind
19 their own piss was the sort of essence of that
20 decision.
21 These at least 14 possibly 31 girls who
22 disappeared from Bountiful from the FLDS side of
23 Bountiful 500 people, 500 people on the FLDS side
24 of Bountiful given their proportion of children to
25 adult that's probably 2 to 300 adults. 2 to # 300
26 adults and you have on the evidence at least 14
27 perhaps 31 children disappearing to go down to the
28 States to be married it's inconceivable to think
29 that that wasn't noticed. But what's really
30 important are for our purposes right now is that
31 it was never reported and considered series of
32 historical FLUKs that led to our -- the revelation
33 in this court of this activity. The hoax call to
34 the Yearning For Zion ranch, the read that was
35 presubpoena at the same timed by that hoax call
36 that nevertheless turned up 800 boxes of documents
37 of evidence.
38 The happy in retrospect event that the FLDS
39 uniquely appears to meticulously document its own
40 abuses if either of those things hadn't happened
41 we would never know about this. We would never
42 have had a report from anyone in beautiful. We
43 never did have a report from anyone in Bountiful
44 about any of these. About any of niece children.
45 So that's just with respect to a place like
46 Bountiful if I can put it that way.
47 But even in the mainstream maybe the reports
 62

1 of child abuse and exploitation would be more

2 frequent but unless Your Lordship could be --
3 could say they are always reported always
4 investigated always prosecuted and always punished
5 then and arguably even then but then and only then
6 could you make the argument that pushing those
7 things down that there's an acceptable level of
8 harm somehow because it can be addressed by the
9 other criminal laws.
10 And it just can't. And you know, I confirmed
11 the under-reporting of these types of oftens with
12 Dr. Shackleford who is an expert on domestic
13 crime. And I said you would have to agree
14 wouldn't you these things are terribly under
15 reported and he said yes and he was speaking of
16 course in the mainstream he had no experience with
17 polygamy or polygamous communities.
18 And even with the compelling evidence I would
19 say, My Lord, even with the compelling evidence
20 that we have before us now it's very doubtful that
21 most perhaps all these incidents of child
22 exploitation what appeared to be incidents child
23 exploitation could ever be prosecuted because the
24 indoctrination of the girls means that they won't
25 cooperate and you have to prove that there was
26 sexual relations. So you need one further bit of
27 good fortune if you can possibly call it that in
28 forward for my friends argument to work and that's
29 that the girl has to get pregnant.
30 I quote at some electrical the passage from RV
31 Butler paragraph 411 My Lord. And this is a case
32 and as I say this is one of the series of cases in
33 which civil LIB tear YANS took the position that
34 these were sort of indirect social harms. And
35 that there were alter in an it tiffs that were
36 less intrusive for instance time, place and manner
37 and restrictions on the display of obscene
38 material and the court rejected that first passage
39 quoted there.
40 In the second paragraph on page 154 perhaps
41 I'll start read TEG the top of page 154. The
42 Court said this KWUNS Parliament has reasonably
43 concluded that's the standard reason conclude you
44 had certain acts are sharply challenges assert to
45 certain groups in society and to society in
46 general it would be inconsistent if not
47 hypocritical to argue that such acts could be
 63

1 committed in more restrictive conditionses. The

2 harm sought to be avoided would remain the same in
3 either case. It is also you be is mitted that
4 there are more effective techniques to promote the
5 objective of Parliament for example if pornography
6 is SEERN as encurrentlying violence against women,
7 there are certain activities which discourage it.
8 Counselloring rape victims to charge their
9 assailants provision of sheller TER and assistance
10 for battered women, campaigns for laws against
11 discripple in an increase the sensitivity of law
12 enforcement agencies other governmental
13 authorities in addition it is submitted education
14 is an under used response.
15 It it's noteworthy that many of the above
16 suggested alternatives are in the form of
17 responses to the harm engendered by negative
18 attitudes against women. The role of the impugned
19 provision is to control the dissemination of the
20 very image that is contribute to such add TUTs.
21 I'll pause there for a moment. What they're
22 saying it's not response O come back and say these
23 things can be bandaged P you're challenging a law
24 that seeks to avoid Edmonton. More over the court
25 continueds violence against women however given
26 the gravity of the harm and the threat to the
27 values at stake, I do not believe that the measure
28 chosen by Parliament is equalled by the article
29 TER native TS which have been suggested. And then
30 just down to the last sentence there will his
31 nothing in the charter which requires Parliament
32 to choose between such complimentary measures.
33 .
34 I go now to the second part of this minutemm
35 mall impairment argue which is reiteration of
36 overbreadth. He this say that even if a law is
37 justified this polygamy law captures too much.
38 Could there be a less minimally impairing -- could
39 a less minimally impairing ban achieve the same
40 goals.
41 We say it's difficult to see how it could.
42 And this goes of course to the question of
43 interpretation and the difficulty of
44 interpretation and the relation of interpretation
45 to harm.
46 It's the central question in my submission for
47 Your Lordship. It's the only be remaining
 64

1 question at the end of the day.

2 We say at the end of our paragraph 414 that no
3 actual language is so far being proposed that
4 might make the provision constitutional. West
5 Coast Leaf of course does say that in had I'm
6 paraphrasing a little but if you adopted the
7 lapping through reading down of the second
8 question that that would make it constitutional.
9 The Canadian polyamoury advocacy comes the closest
10 and as I said earlier they really struggled with
11 this. They -- their interests are at stake here.
12 And they recognize on the evidence that there is
13 harm associated with a great deal of polygamy if I
14 can take Your Lordship. If you have their
15 argument before you. I'm sorry, their FIEM
16 submissions you want to refer you to page 19
17 GIBing there. And they're struggling here with
18 the factors that would allow you to capture the
19 bad polygamy and leave the good polygamy so at 8
20 had they say for instance the laws is full of
21 examples often to do SW sex ball behaviour where
22 the mere SPRENS of children attract as prohibition
23 where their absence does no. Could easily be
24 crafted to capture certain families with children
25 for which there is an apprehension of harm and
26 exclude those without. They go on there is one
27 harm identifier that reacts above all others in
28 identity lating the risk of harm. Polygamy which
29 has it'sT defining feature to use the words of the
30 A FWBC gender inequality in such patriarchal
31 gender have no IT radios to multiple conjugal
32 partners and men's gender do have such rights.
33 The vast quantity of the evidence of harm or risk
34 of harm in this case concerns only such
35 patriarchal polygyny so they admit there is a vast
36 quantity of evidence of harm or risk of harm in at
37 least those kinds of relationships so they suggest
38 sort of language that might be used to assist this
39 and I should say My Lord this only addresses even
40 to the extent that it would be possible and I'm
41 going to propose to Your Lordship it can't it
42 can't be done but it would only address the direct
43 harms. It really does nothing with respect to the
44 social harms.
45 And it doesn't address the proposal that the
46 factors considered with respect to direct harms,
47 the patriarchal nature of the control mechanisms,
 65

1 the effects on children, child brides, I presume

2 by extension all those associated harms to
3 children are actually the result of the practice
4 of polygamy not the other way around.
5 So over on page 21, paragraph 93 the CPAA says
6 this. It would not be difficult to craft and
7 nuanced prohibition that is easily provable. I
8 want to underline easily provable specifically
9 targets such harmful polygyny CPAA proposing the
10 following elements could be constitutionally valid
11 so these are the ones they suggest. First, three
12 or more adult persons co-habit conjugally. Who
13 are raising children and who are not mere
14 roommates. That's the definition they propose.
15 Second, one or more of the adult persons believes
16 one gender is entitled to have multiple sexual
17 partners but the other gender is not. A fact that
18 can be proved by statements of the persons or
19 their participation in the activities of community
20 which promotes such a belief as revealed by
21 statement ofs it's leadsers or by the community's
22 writings O documents and I suggest to Your
23 Lordship just on the face of it that's such an
24 unworkable definition to permit criminalization
25 who are raising children so the relationship is
26 not criminal until someone gets pregnant and then
27 it is. Or perhaps a criminal relationship
28 peculiars non-criminal when the children adopted
29 or leave home.
30 The requirement of belief of course is the
31 trickest thing of all. Does someone simply
32 through disan avow wall of beliefs inequality get
33 out of that definition? I don't really want to
34 debate the details of the merits of this the main
35 points are it only goes to the question of direct
36 harm doesn't go to the question of social harm but
37 it illustrates and I don't want to be
38 disPAIFRNLing of the mug's game of attempting to
39 parse the good polygamy from the bad polygamy.
40 In the same way that it's not a useful
41 exercise to parse the harmless pointing of a
42 firearm unloaded and broken at a person from the
43 harmful pointing of a firearm at a person.
44 We can simply say that a society you don't
45 point firearms. We say the difficulty in
46 requiring as West Coast Leaf and the BCC limit was
47 exploitation are are inequality. Is the same.
 66

1 This is at paragraph 416.

2 The final argument put forward by the Amicus
3 with respect to minute minimum impairment is the
4 argument that the prohibition is unnecessary and
5 it's argued by way of internal comparison and
6 legal history and the argument we expressed at
7 paragraph 418 I'm sure my friends will more fully
8 articulate it but it goes like this until 1890
9 Canada SF Britain shared the same criminal
10 prohibition. Canada bolstered its law with a
11 specific provisions regarding polygamy and Great
12 Britain did not. Now, over 1 PUNZ hears years
13 later both experiencing low levels of polygyny
14 according to comparative sources including prove
15 did he remember whose one on O one to four scale
16 of polygamy. We say this argument is facially
17 appealing but it's many difficulties first of all,
18 the uncertainty about the application of the BIG
19 prohibition to polygamy that existed in Canada in
20 1899 entours in England to this day. We
21 referenced early a couple of articles where that
22 debate is carried out. It not possible to know
23 whether English like the almost identical American
24 versions in registereds and home would be applied
25 to bar polygamy or whether they would not. As for
26 assessing the impact of the entire English legal
27 framework on the spread of polygamy in that
28 country we really have very little evidence on the
29 subject. I say that's true with respect to
30 England and all other countries with the possible
31 exception of the United States. State of the law
32 including immigration law and policies and so
33 forth is simply not known here nor is the presence
34 of polygamy nor is the historical context of any
35 similar threat such as that posed by
36 fundamentalist more man immigration in that era or
37 modern immigration today.
38 And we say that the argument from
39 international comparison founders most on the hard
40 experience of other nations prerevolutionary
41 Mexico and the Brandeis brief more amongst
42 resizely the time when Canada did not arguably and
43 the stuff that I skipped over sites some
44 historians that believe it was the did TIVENTS in
45 law and the legal frameworks that led to that
46 disparity.
47 And the so bettering XACHL of France we
 67

1 touched on earlier.
2 So that takes me My Lord to the last part of
3 our oak's NANS which is the weigh if anything the
4 salutary and deleterious effects just deal with
5 the salutary effects first the evidence indicates
6 the reduction has the following terrible described
7 in the evidence of harm earlier increased per
8 child parental investment with expected increase
9 in the MEMTHS and physical well-being of
10 childrenover all and that in my submission as you
11 made earlier My Lord is where this large family
12 the Amicus attributes to us boils down to society
13 is able to say that it is salutary if family size
14 is on average mall he shall it's not to suggest --
15 many anyway we criminalize large families and that
16 was the inference I drew at least from my friend's
17 submissions.
18 Second reduced social strive conflict and
19 crime that is expected as a result of a more
20 uneven distribution of the opportunity it marry
21 extensive evidence on that point. Reduced average
22 ANL gaps between husbands and wives, increasing
23 equality in marriage. That too is a salutary
24 effect of a ban on polygamy of the reduction in
25 the sex Wale predation on young girls. Reduction
26 in incentives for male control over women and
27 their preproductive capacity and consistency with
28 Canada's international treaty and legal
29 obligations.
30 And in addition we say and you know my friends
31 take I think strenuous objection to our even
32 making this argument that eliminating the right of
33 citizens to NAER increases the opportunity of
34 others marry at all. We THU this down as a
35 salutary effect. It it's not ass my friend
36 caricatures it the idea that a lesbian should be
37 prosecuted because she is depriving a man of a
38 husband. We just note that in my Ron and true DEL
39 and is certainly it's not unique to that case
40 [phonetic] the minority upon made No, ma'am
41 important marriages the actually a fundamental
42 human right that was formally recognized under the
43 US constitution and international law. This Court
44 ask not have to recognize any legal aspect it need
45 to recognize only it's more widespread
46 distribution as a social good.
47 There's also I'm down at 425, My Lord I should
 68

1 not skip over this last paragraph it's another one

2 my friend takes strenuous objection to. We say
3 that they took exception to this argument
4 suggesting disparaged women we said setting aside
5 the eye any of this position is it not the
6 polygamists who appear to be trading women and
7 girls. And I think that was one of the things my
8 friend might have referred to as an outrageous
9 stereotype or generalization. So let me rephrase
10 that if it will give my friend some comfort.
11 Is it not on the evidence that it is a MRIJS
12 society that engages in the trading of women and
13 girls? We say to the extent that the charter is
14 not irrelevant that in denying one class of
15 persons the right to marry plurally they
16 contributing the right to overall more equitably
17 through society it's not irrelevant to salutary
18 and deleterious effects.
19 Now of course the Amicus asserts these
20 salutary effects cannot be causally rinked to the
21 polygamy ban ask therefore they're not really
22 SLtry effects is we have already dealt with the
23 question effectiveness and the evidence indicated
24 the links so let me move to the deleterious
25 effects.
26 And this is my last section, My Lord before a
27 very brief wrap up so perhaps I would continue 5 a
28 to 10 more MIPS.
29 THE COURT: Thank you.
30 MR. JONES: The deleterious effects identified by the
31 Amicus in the FLDS and their a alleys fall into
32 two broad categories. The first category contains
33 a number of asserted arms stigma an and
34 decriminalization the insularity caused by fear of
35 prosecution and the harms of the criminal process
36 itself. We make one general observation about all
37 of these deleterious effects they are visited on
38 persons who violate the law not on persons who
39 obey it. And that's -- ma that I cans them odd in
40 charter jurisprudence because usually you're
41 saying I have this deleterious effect because you
42 can't do what I want to. Well here they're saying
43 I have this deleterious effect because I do what I
44 want to because it's criminal you suffer these
45 burdens.
46 So we say this point may seem self-evident but
47 it's not. The weight or the harshness of the
 69

1 criminal is properly under section 7 and 12. What

2 we really should be talk about here is the harms
3 that are visited upon the persons who obey the
4 law. Because obedience is what the law requires.
5 Obedience is what the state is imposing. We also
6 say as a preliminary point at 429 that under
7 section 1 it is not the role of the courts to
8 weigh in a global sense all the negative effects
9 of criminalization against the benefits gained.
10 Rather, the benefits of prohibition are waived
11 only against the harms to the exercise of the
12 charter rights breached. So to this STEPT My Lord
13 you do have to consider how many of the charter
14 rights are at issue here which of them have
15 actually been infringed if you find yourself in
16 the section 1 process. Simply saying up with is
17 infringed so we're going to section -- that one
18 section is infringed so we'ring if to section 1
19 isn't actually really good enough although a lot
20 of decisions it tend to do that because in the
21 salutary and deleterious weighing there mate be
22 other I am packs so if there was an equality claim
23 then those would both be the infringements would
24 both be legitimate deleterious effects but nothing
25 beyond the infringements are under law considered
26 to be deleterious effects. You don't simply weigh
27 all the bad things that are associated with the
28 prohibition.
29 So we say the second category of assertive
30 deleterious effects and the only one properly
31 considered the at is beings consequences of
32 obeying the law. So we say there that if we're at
33 the section 1 stage it's because the Court has
34 found there's a DEP ryation of religious freedom.
35 For those very few persons in Canada who believe
36 polygamy is ordained rather than simply permitted
37 by the religious this deprivation we say could be
38 significant.
39 Secondly there may be an equivalent loss of
40 secular liberty the loss of the freedom to CHOO to
41 wife but in order for this to rise this the level
42 of deleterious effect under section 1 it must be
43 that was not in accordance with the principles of
44 fundamental justice. And I think it's trite by
45 this point that the court has found that outside
46 situations of war or invitation of section 7 won't
47 be supported under section 1 so if this hasn't
 70

1 survived if the weighing of the deleterious and

2 salutary effects has not survived the section 7
3 stage then I don't think section 1 is even going
4 to be an issue.
5 So if we're at the section 1 stage really what
6 we're talking about is the loss of religious
7 freedom now we say that fundamentalist Mormons
8 appear to be the only are J that mandates polygamy
9 that's not determinative as we know from the
10 section 2A jurisprudence.
11 It's arguable of course the desire to practice
12 polygamy rather than the reverse but this is
13 really giving the scope of harm's attached to
14 polygamy of little consequence. A religion may
15 hold as a central tenet pressurement of relation
16 by stoning or I am mow LAGS. General sigh DAL war
17 or infanty side. The only time a criminal law has
18 been struck down because of a conflict was and
19 there it was the religious purpose of the law that
20 offended so one way or another, My Lord, at the
21 end of the day criminal prohibitions have
22 withstood section 1 analysis and when you think of
23 it given the breadth that's been given to section
24 2 A now by the Supreme Court in had almost all
25 cases it would have to be virtually automatic
26 under the present jurisprudence unless at least
27 professor HOG's synopsis of it. Provided you
28 believed it was are ordained or permitted by your
29 religious you could fly a jumbo jet into a sky
30 scraper and it would be prima facie protected by
31 section 2A. It would be promptly and in my
32 submission summarily swept aside under section 1.
33 I wouldn't even think that the government would be
34 called upon to satisfy its onus of deucing a
35 single piece of evidence many that case.
36 I'm not saying that the answer here is as easy
37 but the point is this that virtually every crime
38 can be associated with religious practice or
39 permission.
40 We make the point at paragraph 438 that we
41 made before with it was you a NEEK and GENDed on
42 the basis of freedom of religion like the wearing
43 of a turban or kerpan succah LJS man a dated
44 plural marriage is harmful in part because of it
45 is religion OS it I and the more profound and
46 controlling the religious belief the more harmful
47 can it be. It's a unique consideration here. At
 71

1 4 had 40 we make a final point the religion

2 practice being defended here is it in testify TIS
3 cripple in atry as it embraces only polygyny a
4 such we say charter values of equality and dignity
5 are mow PROETed to the STENTD that the practice is
6 TUR KAL it had had the nature of the exercise of
7 infringed right is itself distance from the values
8 designed to protect the weight accorded to its
9 infringement should be minimal at best.
10 And when we consider what the impact here
11 My Lord again we've got a zero sum game. We let
12 Winston Blackmore have his 225 wives, 25 -- 24 of
13 his co-religionists are prevented from exercising
14 their religion rights their religion interests in
15 marrying at all.
16 SF given that the harm associated particularly
17 with religious practice of polygamy we would say
18 that on balance the curtailment of the religion
19 exercise of polygamy to at least those two reasons
20 is on balance a salutary effect not a deleterious
21 one.
22 And I turn now to my conclusion My Lord
23 paragraph 442 and I'm not going to read any of
24 this expect to remind your of the testimony of
25 Truman Oler I say at paragraph 447 there's never
26 been a forum where the harm of polygamy has been
27 made more plain. Where the arguments in FAF of
28 permits it have been shown to be so empty. In
29 this hearing, even polygamy's enthusiastic PRASH
30 NAERs have revealed the depth of their own wounds
31 and the scale of the devastation around them.
32 There is no better way to conclude than with
33 Truman Oler, a heavy duty mechanic whose
34 constitutional analysis embarrasses us in its
35 simplicity and power. And I was just astonished
36 when he said that. And you remember Mr. Oler he
37 had a slow and very careful way of answering
38 questions and very thoughtful and so his language
39 is a little bit broken. But he said this:
40 "I looked it up a little bit on the internet
41 this was in response to Ms. Horsman's
42 question about you know he had said in his
43 affidavit I'm so sick and tired about talking
44 about polygamy. I wish people would want to
45 talk about something else. She said given
46 that why are you here. Why are you giving
47 your testimony here. And he said he
 72

1 understood that this had was a constitutional

2 challenge under the charter and I said I
3 looked it up a little bit on the internet and
4 I read through that second -- that second
5 charter and that one -- the one thing they're
6 trying to do is use that right to protect
7 themselves zips but ... the teaching of that
8 one religion is taking away all the rest of
9 the rights on that charter. And I just --
10 it's just -- I don't know if they -- we never
11 as children knew of charters and rights and
12 freedoms, but I just don't understand. Well,
13 I guess I kind of understand now but it's
14 just -- it's just just feel right to me why I
15 know it's not for children to have to go
16 through what I went through and all for no
17 reason.
18
19 So I say in conclusion My Lord it's not an
20 excavation to say that the world is watching this
21 case. It has been far by the most thorough and
22 profound exploration of polygamy and its harms in
23 any courtroom ever. If and I say 23 the
24 prohibition against polygamy cannot be supported
25 today on this record then it can't be supported at
26 all. Those are my submissions My Lord.
27 THE COURT: Thank you we'll take 15 minutes.
28 THE CLERK: Order this court. Court is adjourned for
29 the afternoon recess.
30
31 (AFTERNOON RECESS)
32
33 THE CLERK: Order in court. .
34 THE COURT: Mr. Reimer.
35 MR. REIMER: Yes, My Lord. Just for record I'm
36 appearing for the general of Canada this afternoon
37 in this matter.
38 The issue in this reference is the
39 constitutionality of Parliament's decision to
40 enact a criminal prohibition against the practice
41 of polygamy. And I just want to pause there for a
42 moment because language is important in this
43 matter. There have been a lot of terms discussed
44 and a lot of different words used and I think it's
45 important to look at the word polygamy because
46 that's what is being prohibited in this case.
47 MRUG comes from agreeing roots meaning literally
 73

1 many marriages polygamy is the practice of being

2 married to more than one person at the same time
3 and I want to stress are multiple simultaneously
4 marriages and this reference is about that
5 prohibition of multiple marriages.
6 Marriage is a public institution. And it has
7 a fundamental and foundational effect or it's a
8 fundamental and foundational structure in Canadian
9 society.
10 And a marriage whether sanctioned by the state
11 has effected that extend well beyond individual
12 participants. In Canada's submissions the
13 evidence in this reference has demonstrated there
14 are significant harms to individuals and to
15 society lived to the practice of polygamy or
16 linked to the practice of multiple marriages.
17 And the provision in question here section 293
18 # of the Criminal Code prohibits a person from
19 being in multiple marriages at the same time.
20 Canada has filed a written energetic
21 arrangement matter already. I will be referring
22 to portions of that argument but I'm not intending
23 to go through it paragraph by paragraph.
24 Your Lordship obviously has the argument and
25 will be able to consider it. On your own.
26 Instead what I am proposing to focus on in my
27 submissions are two of what Canada cease as
28 fundamental questions that Your Lordship has to
29 answer in this reference.
30 The first question that I would like to
31 examine is the question of whether or not there's
32 a reasonable apprehension that the practice of
33 polygamy poses a risk of harm to individuals and
34 to society. The Supreme Court of Canada has
35 recognized that Parliament is entitled to impose a
36 criminal prohibition if there is a reasonable
37 apprehension that a practice poses a risk of harm.
38 And more over, once it's been demonstrated that
39 the potential harm is not insignificant or trivial
40 Parliament is entitled to deference in calculating
41 the nature extent of that harm and crafting an
42 appropriate response.
43 Parliament is not required to provide
44 scientific proof based on concrete evidence of the
45 problems it's seeking to address. They only has
46 to be evidence that creating a reasoned
47 apprehension of harm.
 74

1 And I don't say that to try and minimize the

2 evidence that has been presented in this case.
3 In Canada's submission this court has heard
4 and received a powerful body of evidence of the
5 harms individuals and to society linked to the
6 practice of polygamy. The social science
7 literature on the practice of polygamy and its
8 effects is extensive and a number of experts have
9 reviewed the social signs literature relating the
10 practice of polygamy and its affects a lot of that
11 literature is contained in the Brandeis briefs and
12 been filed by the parties and others in this
13 reference. The social science literature is drawn
14 from numerous academic disciplines, economics,
15 anthropology, history, psychology, sociology,
16 biology political science, philosophy and law and
17 the authors of that literature employ a wide
18 variety of methodologies field studies,
19 statistical analysis. Cultural studies and the
20 vast majority of the literature comes to the same
21 conclusion. The practice of polygamy is lived to
22 a consistent set of harms to individuals and to
23 society. And those harms include physical and
24 sexual abuse sexual and reproKUK tiff health
25 harms. Psychological and emotional harms.
26 Physical health harms including increased
27 mortality of children, economic deprivation, lower
28 levels of education, sex ratio imbalance
29 inequality in the:
30
31 In a lie SAGS of young men. Decreased
32 political rights the commodification and
33 objectivefication of women and increased
34 discrimination.
35 In addition to the social science literature
36 that an is before Your Lordship you've also heard
37 from experts and from lay witnesses alike about
38 the very real and so bettering impacts of polygamy
39 on individuals and on society.
40 You have heard from various experts from
41 different academic disciplines using different
42 methodologies and data sources and 9 they have all
43 come to the same conclusion against polygamy is
44 inherently risky practice that is caused and
45 consequence of a consistent set of harms.
46 One of the things that has struck me about the
47 evidence in this case is that the harms associated
 75

1 with polygamy recognize both geographically and

2 through time in other words what the evidence
3 shows these harms are recognized around the world
4 and they have been recognized consistently through
5 history.
6 And I come back to that question I posed right
7 he beginning
8 Q A reasonable apprehension the practice of polygamy
9 poses a risk of harm to individuals and to
10 society. It's Canada's position that the
11 government in this case is gone well beyond the
12 evidentiary standard requires under the case law
13 and has proffered not just some evidence but
14 numerous social science experts and studies whose
15 evidence plainly establishes the section 293 is
16 based on a reasoned apprehension of serious harm.
17 The evidence in this case in my submission is
18 actually approaching if if I can, in fact, it's
19 not territorial actually met that standard of
20 scientific proof based on concrete evidence but
21 the huge body of evidence available in this case
22 doesn't change the question this court has to
23 answer whether or not there's a reasonable
24 apprehension of harm. I think it's very tempting
25 when we look at all the evidence before the court
26 to think this is our opportunity to determine
27 conclusively these questions but the question
28 remains is there a reasoned apprehension of harm
29 in this case.
30 And I submit that in order for this court to
31 decide there is no reasonable apprehension of harm
32 you would have to be prepared to disregard or do
33 give no weight to the very large body of evidence
34 that is before you of the harms to individuals and
35 to society.
36 So that is the first question I want to spend
37 some time if not this afternoon more likely
38 tomorrow morning considering.
39 The second fundamental question that Your
40 Lordship will have to answer is what is the proper
41 interpretation of section 293. The Amicus and the
42 other persons challenging the section have URNLed
43 a broad interpretation of section 29 urge 3 and I
44 submit they have urged that broad interpretation
45 because they want to argue in provision isoverly
46 broad and therefore unconstitutional. They want
47 to be ASHL to argue that the section sweeps in not
 76

1 only multiple marriages but also any kind of

2 committed intimate relationship of some
3 permanence. But it's Canada's submission that the
4 proper interpretation of section 293 is more
5 focussed. The history, the scheme of the
6 provision, the language of the provision the
7 intention of Parliament all indicate that section
8 293 is directed at multiple marriages. And I come
9 back to the point that I made in my very first
10 statements, which is that this provision prohibits
11 polygamy. Polygamy is multiple marriages
12 THE COURT: Let me stop you for a second. Any multiple
13 marriages I mean Tim marriages between who have.
14 Any type. Any persons not just MRIJS rhyme rile
15 OOITH.
16 THE COURT: I got a little confused because in
17 paragraph # # you say in Canada submission the
18 term polygamy refers to polygyny yet your take on
19 section 293 is it prohibits multiple marriages
20 whether in a poll an DROUS sense or in a MRIJS
21 sense.
22 MR. REIMER: It's Canada's strict will you speaking be
23 polygyny and polyandry.
24 THE COURT: Or indeed same sex ultimately.
25 THE COURT:
26 MR. REIMER: It prohibits multiple marriages but I
27 guess the point I'm trying to stress at that time
28 is what it's prohibiting marriages and not
29 unmarried relationships.
30 THE COURT: Correct. I understand. That's your
31 emphasis so should I just to follow that up every
32 time you say polygamy should I think polygyny as
33 you suggest in paragraph 3 or should I think every
34 combination thereof?
35 MR. REIMER: On the evidence the pro of polygamy
36 manifests itself as the practice of polygyny that
37 was how it manifests itself.
38 THE COURT: Correct.
39 MR. REIMER: When I am.
40 THE COURT: By and large.
41 MR. REIMER: By and large. But as I say our position
42 on the interpretation of section 293 is it
43 prohibits polygamy which would include all forms
44 of multiple marriages.
45 THE COURT: All right.
46 MR. REIMER: And on that question of the interpretation
47 of section 293 as I've been stressing it is about
 77

1 marriages it prohibits multiple marriages it's not

2 about sexual real estates or common law relations
3 or could could he has been TIGS TAS about marriage
4 and I will spend some time again likely tomorrow
5 morning looking at the decisions that have
6 considered section 293 and its predecessors.
7 Because the courts have already recognized
8 that section 293 is about marriage and that it
9 prohibited only multiple marriages and the courts
10 have been consistent in that. They have not found
11 or they have found that it did not actually apply
12 to cohabitation situations and I raise that
13 because that is one of the fundamental differences
14 I think in Canada's position and where the Amicus
15 and some of the challengers have gone is to the
16 breadth of this provision.
17 And the other important point that I would
18 like with respect to the interpretation of section
19 293 is that when Your Lordship is interpreting the
20 section you should prefer an interpretation that
21 is least likely to create constitutional issues.
22 In other words, the objective of this is not to
23 find an interpretation that would cause what would
24 be unconstitutional. This point has been made
25 numerous occasions by the Supreme Court of Canada
26 most perhaps very cheerily made in Sharpe decision
27 with the Chief Justice said until he with know
28 what the law catches we cannot say whether it
29 catches too much. This Court has consistently
30 approached claims of overbreadth on this basis.
31 It's not enough to accept the allegations of the
32 parties as to what the law prohibits the law must
33 be construed and interpretations main MIEZ the
34 alleged overbreadth must be explored.
35 And I come back to my general point which is
36 that the fact that section 293 was focus focussed
37 on prohibits mull I am marriages is consistent
38 with history, the language, the purpose of the
39 section and it's also the interpretation that
40 minimizes the overbreadth being alleged by the
41 challengers.
42 THE COURT: But in saying that you're not asking me to
43 read it down to marriages you're saying the.
44 MR. REIMER: I'm saying that's what the provision.
45 THE COURT: That's what it means it's not reading it
46 down at all.
47 MR. REIMER: No I would submit that's the proper
 78

1 reading of the section and, in fact, that's the

2 reading that the courts have already given the
3 section.
4 The third question that's out there which
5 Mr. Jones has alluded to as well is the purpose
6 for which section 2293 was originally enacted.
7 And I should just avoid any confusion on this I
8 will be referring to the section at 29 # # I
9 appreciate it it's gone through multiple
10 re-numberings hopefully in a won't cause any
11 confusion if we are talking about it in specific
12 historical point I will try to refer to it as a
13 the section number at that time but for ease of
14 reference I'm going to refer to it at section 293
15 recollection EP acted for an improper purpose and
16 attorney general of BC has already increased this
17 question in detail. Canada dealt with it in our
18 written submissions we agree with BC's submission
19 I'm not planning to spend any time on that issue.
20 So I'm going to focus on those two questions
21 Q A reason apprehension of harm and what is the
22 proper interpretation of section 293. And
23 fundamentally how the Court answers those
24 questions will largely drive the charter analysis.
25 One of the things that is apparent from this is
26 that when you look at the arguments there's a bit
27 of -- there's a bit of two ships passing in the
28 night here it it really depends on the harms of
29 polygamy and what is your interpretation of
30 section 293 as to how the charter analysis plays
31 out so the answer to those questions in many ways
32 determines the charter analysis as well.
33 Turning then to the first question then I
34 obviously won't get far into the question of the
35 harms of polygamy but I would like to at least
36 start briefly this afternoon if I might.
37 The Amicus argues that the government the
38 defenders in this reference have faileded to
39 establish that polygamy is the cause of harms that
40 it heightens the risk of harms or SAUCH a causal
41 link between polygamy and the harms can be
42 reasonably apprehended. And it's my submission
43 this blanket dismissal of the evidence cannot be
44 sustained. This court for approximately two
45 months, two and a half months has heard a variety
46 of evidence. Expert evidence, lay witnesses,
47 social science literature has been DOOUDZed all
 79

1 talking about the I am facts of polygamy on

2 individuals and on society. And I submit that
3 contrary to the Amicus's assertions there's been
4 consistent and overwhelming evidence of polygamy's
5 harms.
6 And before I turn to examine some of the
7 evidence of the harm that's been received in this
8 reference I would like to spend a little bit of
9 time looking again at this Court's task. What is
10 it that Your Lordship actually has to do when
11 confronted with this huge mass of evidence.
12 Mr. Jones for BC already touched on some of
13 these cases a little bit but I would although I
14 can to go through them again because I do believe
15 its useful as already submitted
16 Of Canada has recognized Parliament is
17 entitled to impose a criminal prohibition
18 if there's a reasoned or reasonable
19 apprehension of the practice posing a
20 risk of harm and the problem is entitled
21 to act on reasonable apprehension even to
22 quote the SPLOOEK the jury is still out
23 on some points. In order for Your
24 Lordship to find that Parliament could
25 not prohibit the practice of polygamy you
26 would have to be satisfied on a balance
27 of probabilities that there is
28 insufficient evidence.
29 To establish a reasonable apprehension that
30 the practice of polygamy poses a risk harmses to
31 individuals and so society. Looking at all of the
32 evidence that has been received in essence the
33 conclusion would have to be when I look at that
34 there is just no reasonable apprehension of harm.
35 Parliament is not required to provide scientific
36 proof based on concrete evidence of the harms.
37 It's well established that where the risk of harm
38 or the effectiveness of particle ament's recommend
39 day is difficult or not the Court's to decide upon
40 the appropriate course of action provided again
41 there's an reasoned apprehension of harm.
42 And in determining that it's appropriate for
43 the Court to rely on logic, reason and some social
44 science evidence to determine whether there's a
45 reasoned apprehension of harm.
46 And there are three cases that I think are
47 worth turning to and considering. When enrolment
 80

1 looking at what is the Court could when you're

2 confronted with this mass of social science
3 evidence. What is that you need to do.
4 And I think sorry I'm just cognizant of the
5 time. I'm wondering whether I want to LAURJ into
6 this particular..
7 THE COURT: I'm this your hands you've got the tail end
8 of the day NFTly. Well, no criticism. Are you
9 going to have -- we you be able it to finish can
10 have the reply in.
11 MR. REIMER: I believe so. I believe so. I mean I
12 will say this Mr. Jones has covered a lot of the
13 field. I'm going to try not to simply repeat
14 things he has said.
15 THE COURT: Why don't we break now and give you a
16 chance to concentratement.
17 MR. REIMER: Before we break first thing tomorrow
18 morning I will DW to some of the authorities I
19 believe we confirmed there were first joint books
20 of authorities filed in November which I will
21 break open.
22 THE COURT: Right. Are they give me a colour here.
23 MR. REIMER: TAEL actually the buff coloured books on
24 the tomorrow shelf there. Four of them right
25 there.
26 THE COURT: Okay.
27 MR. REIMER: The three cases I'll be looking to break
28 the suspense.
29 THE COURT: There's no suspense according to one
30 well-known writer there is no suss expense in this
31 room.
32 MR. REIMER: I would like to look at but the TER and
33 Malmo-Levine which are in FOES FOUR first four
34 volumes.
35 THE COURT: Butler Sharpe and Malmo-Levine.
36 MR. REIMER: Yes.
37 THE COURT: Tomorrow morning.
38 THE CLERK: Order court. Order in court. Escort is
39 JOORPD until March 31st, 2011 at 10 a.m.
40 (Proceedings adjourned at 3:53 p .m.)
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