11-25-2010 transcript of canadian polygamy reference case day 4

8/7/2019 11-25-2010 Transcript of Canadian Polygamy Reference Case Day 4

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1

Discussion

1 November 25, 2010

2 Vancouver, B.C.

3

4 (DAY 4)5 (PROCEEDINGS COMMENCED)

67 THE CLERK: Order in court. In the Supreme Court of

8 British Columbia at Vancouver, on this 25th day of

9 Vancouver 2010, recalling the matter concerning

10 the constitutionality of section 293 of the11 Criminal Code, My Lord.

12 MR. JONES: My Lord, just before my friends continue13 with their opening submissions they've kindly

14 granted me permission to just address the question15 of scheduling of our application for a limited

16 publication ban. My friends for the CPAA and the

17 FLDS have indicated that they will together be an

18 hour and a half or less which should take us to19 the noon break.

20 They are the last of the opening statements.21 Our application, as you know, went on notice to

22 the media only yesterday, however the Vancouver

23 Sun, who is the only publisher so far of the

24 videos, has been on notice for more days, and Mr.25 Dan Burnett, I've been in contact with him at Owen

26 Bird, who's representing the Sun in this matter,27 and he's indicated that he will be prepared to

28 argue the matter this afternoon, any time from 229 o'clock onwards.

30 So my proposal --

31 THE COURT: What about the other media?

32 MR. JONES: We've received no response.33 THE COURT: When were they served?

34 MR. JONES: Yesterday morning, My Lord, after your35 direction.

36 THE COURT: Well, what is the time, I still haven't37 looked at the Practice Directive, how much notice

38 does it require?39 MR. JONES: The Practice Directive calls for two clear

40 days. Our application doesn't fall, we don't

41 believe, strictly within the terms of the Practice42 Directive.43 My proposal would be to argue it with the

44 Vancouver Sun in opposition and have the nature of

45 the order crafted so as to permit any other group

46 that does want to make broader use of the videos47 to apply to the court to do so.



2

Opening statement by Mr. Wickett

1 THE COURT: So who was served with it?

2 MR. JONES: I'm afraid I don't know, My Lord. It was

3 through the process that the court has

4 established.5 THE COURT: Okay. Well, I'm a bit reluctant to hear it

6 without other parties having an opportunity to be7 heard on it, so perhaps you can find out who else

8 was served. They really should be entitled to a

9 bit more notice. Why don't you at least find out

10 who else was served.11 MR. JONES: I'll do that, My lord.

12 THE COURT: And we'll revisit it. I can't say now if13 it's going to go at 2.

14 MR. JONES: That's fine, My Lord. Would you grant me15 leave to absent myself for the balance of the

16 morning and I'll see if I can check that?

17 THE COURT: Sure.

18 MR. JONES: Thank you.19 THE COURT: How long will it take, Mr. Jones?

20 MR. JONES: We've estimated one hour, My Lord, and I21 think that's realistic.

22 THE COURT: Thank you. Mr. Wickett.

23 MR. WICKETT: Sorry to see that Mr. Jones is absenting

24 himself from the most important submissions of the25 day. That's my view and I'm sticking with it.

26 My Lord, we filed two openings and I'll27 address myself to those in a moment.

28 It is obvious from all that of you've heard so29 far from counsel in this case that the focus of

30 the evidence in this case is the FLDS and the

31 community of Bountiful in particular. Evidence

32 about the beliefs, practices, of those who adhere33 to this faith constitute, dare I say, virtually

34 the entire evidentiary filing in the case, in35 particular regarding the harms of polygamy.

36 In that regard it appears that the context37 within which section 293 will be adjudged is

38 largely within the context of fundamental39 Mormonism. While the FLDS might wish that that

40 was not so, it is the reality of this case that

41 they are compelled to deal with it.42 In my respectful submission, that43 adjudication with respect to section 293 must

44 commence with the definition of the offence

45 described in 293, so that there is some framework

46 to distinguish between the evidence that you will47 hear properly related to the offence itself, and



3


1 the evidence that I will be suggesting is merely

2 related to this -- the unpopular religious beliefs

3 of this tiny religious community in Creston,

4 British Columbia.5 Now, in terms of my opening, My Lord, I

6 largely adopt the opening of my friend Mr.7 Macintosh and I don't intend to repeat what he has

8 said in opening respecting the particular Charter

9 rights at issue here.

10 I'd prefer in my opening to focus on the11 definition of the offence, in particular, and then

12 I'd like to turn My Lord to the circumstances of13 the FLDS in this reference.

14 Turning to the first of my openings, if I15 could ask you to turn to the second page, I'm

16 going to commence at paragraph 7.

17 It will, My Lord, be the case for the FLDS

18 that section 293, correctly interpreted, requires19 the crown to prove to the criminal standard that

20 the accused agreed to live in a marital or a21 marital-like relationship with two or more people

22 at one time, and that the accused believed this

23 agreement to be binding upon his or her conscience

24 for some period of time. The actus reus of the25 offence is in my submission the making of the

26 agreement, and the mens rea is the intent to make27 the agreement and the subjective belief that such

28 an agreement is binding on the accused for some29 period of time.

30 I've cited a case there that was decided by

31 the Court of Queens Bench in Quebec, one year

32 after the section was promulgated. And I feel33 very badly that I'm going to be the only counsel

34 that is actually referring to our case books, My35 Lord, and I do thank my friends from the federal

36 attorney for putting them together. Does Your37 Lordship have these?

38 THE COURT: Yes, I do.39 MR. WICKETT: It's just a brief reading, My Lord,

40 volume 2.

41 THE COURT: M'mm-hmm.42 MR. WICKETT: It's the last case in that volume, is at43 tab 30. I thought I'd refer to this, My Lord, in

44 opening because its instructive in my respectful

45 view with respect to the thinking of at least the

46 courts at the time the section was promulgated.47 This was really a test case in a way because the



4


1 accused Labrie appeared before the Court of Queens

2 Bench on a charge of unlawfully living and

3 cohabiting in a conjugal union with a certain

4 person, to wit, Rosa Ada Martin, she Rosa Ada5 Martin then being married to another person. And

6 in the beginning of that second full paragraph His7 Lordship said this:

8

9 The facts of cohabitation, that each of them

10 were married to other partners is fully11 proved. However, counsel for the defence

12 claimed that there was no offence for which13 Labrie in law could be convicted.

1415 That's paragraph D in section 5 and he quotes the

16 section.

17

18 ... applied only to Mormons and the like who19 have gone through a marriage of some sort, a

20 conjugal union, before cohabiting with one21 another. On the other hand the crown said

22 that the law applied to everybody and anybody

23 who then married, cohabited or agreed or

24 consented to do so with another person25 married person as Labrie had done.

26 In my charge to the jury I told them27 that the point raised was quite a new one,

28 the law having come into force last year only29 and suffered some considerable doubt from the

30 wording of the statue and what had been the

31 intention of the legislature in framing, and

32 if they brought in a verdict of guilty I33 would most certainly reserve the point for

34 consideration for the full bench of the Court35 of Queens Bench. They did bring in a verdict

36 of guilty, but I did not sentence the man.37 The point now reserved is whether or not

38 under the new statute referred to Labrie39 committed the misdemeanor he had been found

40 guilty of.

4142 Continuing the section then as cited as it then43 was worded, My Lord, and you've heard in other

44 submissions that at time there was a particular

45 reference to Mormons in the statute. Continuing

46 to the next page:47



5


1 St. Pierre QC, for the defendant's

2 submissions were, he contended that the

3 object of the statute was to repress

4 Mormonism. There must be a conjugal union,5 some form of ceremony joining the parties.

6 The object of the law was not to prevent7 immorality. It was taken from the Edmonds

8 act.

9

10 And I pause here to say that was the statute of11 the United States that dealt with polygamy in

12 Utah.13

14 It was taken from the Edmonds act. It was15 not intended to prevent mere concubinage, but

16 a union of persons of opposite sex which the

17 parties suppose to be binding on them. The

18 words 'conjugal union' imply there must be19 some tie between the parties. Dorian,

20 chancery judge, giving judgment of the court21 held that there was no offence shown. It was

22 apparent from the statute that there must be

23 some form of contract between the parties

24 which they might suppose to be binding on25 them but which the law was intended to

26 prohibit.27

28 And it went on from there to recite the formal29 judgment acquitting the accused.

30 I read that to you, My Lord, because it is

31 illustrative of the definition which I will be

32 asserting is the underpinning -- as the definition33 which ought to be adopted by this court.

34 Return to my opening at paragraph 9. Section35 293 prohibits an agreement that is binding on the

36 conscience of the accused and enduring for some37 period of time. It does not prohibit the

38 behaviour that constitutes the relationship that39 is the subject matter of the agreement. It does

40 not prohibit the behaviour of living with more

41 than one person, or having sex with more than one42 person, or having children with more than one43 person, or indeed loving more than one person.

44 For the members of the FLDS engaging in this

45 behaviour, section 293 strikes at the motivation

46 and agreed consequences flowing from such47 behaviour.



6


1 What I mean by that, My Lord, is the section

2 strikes at the motivation for engaging in the

3 behaviour and the consequences that the parties

4 themselves have agreed will flow from engaging in5 such behaviour, that is the contract they've made

6 with each other.7 Further, it will be submitted on behalf of the

8 FLDS that a criminal offence cannot be defined in

9 a way that depends on the actions of a third

10 party. I pause here to say, and I want to digress11 slightly from my opening, I'm referring in

12 particular here to the definition offered by the13 Attorney General of British Columbia. I pick on

14 that one in particular because, as Mr. Macintosh15 said, it's an informative interpretation because

16 the Attorney General of British Columbia is the

17 enforcer of the law, but I fully recognize that

18 other parties have other definitions.19 And what I say, I want to expand on this

20 slightly, is that whatever the definition, the21 definition offered by the Provincial attorney in

22 my respectful submission will not and cannot be

23 sustained as it contemplates as an element of the

24 actus reus of the offence, action by a third25 party. And I say it is offensive.

26 What I mean by that, My Lord, the original --27 I want to just step back in time on this

28 reference, originally Mr. Jones delivered an29 opening statement or opening position, if I can

30 put it that way, I don't know if you have it, I

31 brought along just the one page I want to refer

32 to.33 THE COURT: Sure.

34 MR. WICKETT: And I've just photocopied the one page,35 if you turn to the second page, paragraph 7, the

36 Provincial attorney provided you with a definition37 at that time that was as follows:

3839 Section 293 prohibits marriages or

40 marriage-like relationships involving more

41 than two persons that purport to be, A,42 sanctioned by an authority having power or43 influence over the participants and, B,

44 binding on any of the participants.

45

46 The definition that my learned friend Mr. Jones47 provided to you on behalf of the Provincial



7


1 attorney on Tuesday was slightly different. He

2 said, at page 22 of his opening, paragraph 61,

3 that polygamy is a polygynous marriage that

4 purports to be, A, sanctioned by some authority5 and, B, binding on any of the participants.

6 Now, returning to the original statement, in7 fairness to my friend, in paragraph 8 of his

8 statement he says that the prohibition was and is

9 addressed to the overwhelmingly dominant form of

10 polygamy being polygyny. But the definition has11 changed. The two changes in the definition over

12 time are as follows: Firstly, the definition has13 changed so that polygamy is polygyny, not all

14 "marriage or marriage-like relationships" and15 number 2, it must be sanctioned, according to my

16 friend, by some authority, but not necessarily one

17 having powerful influence over the parties. He's

18 taken those words out of the definition.19 I mention this now not to comment on these

20 differences particularly. My learned friend and21 the Attorney General is perfectly entitled to

22 change his view as to the interpretation of the

23 section, but rather to focus on what has remained

24 constant in the definition proposed by the25 Provincial attorney, and that is that the marriage

26 must purport to be sanctioned by an authority.27 And that element of the definition, it will be the

28 case for the FLDS that that element of the29 definition, if accepted by the court, imports into

30 the actus reus of the offence action by a third

31 party unrelated to a voluntary act of the accused.

32 And it will be our submission that whatever33 the definition settled on by Your Lordship with

34 respect to this offence, it cannot be defined by35 reference to an actus reus that includes as an

36 element of it an act of a third party unrelated to37 that of the accused thereby violating one of the

38 most basic principles of criminal law, which is39 that a criminal offence is a voluntary act of the

40 accused.

41 With that, My Lord, if I could ask you to turn42 to our second opening statement, stamped November43 15th.

44 THE COURT: Thank you.

45 MR. WICKETT: Second page, My Lord, paragraph 4. I'm

46 just picking up on the point I've just made. The47 definition proposed by the Provincial attorney



8


1 crafted, as it were, to jam the square peg of

2 section 293 into the Charter of Rights focuses the

3 defence of section 293 upon the practices of the

4 FLDS in Bountiful. For the attorneys, it must be5 this way, of course, because if section 293 is

6 merely a crime of status, which is what I7 anticipate our submissions will be, prohibiting

8 the status of three or more persons living in

9 conjugal association while behaving in a manner

10 that is otherwise perfectly lawful, then it will11 fail Charter scrutiny for all of the reasons

12 detailed by my learned friend Mr. Macintosh in his13 opening.

14 Paragraph 6, the FLDS does not appear at this15 reference to defend its religious practices

16 generally or its culture. Members of the FLDS

17 know full well that their beliefs and practices

18 are neither understood, or to the extent that they19 are understood, accepted by the majority of

20 Canadians. Fundamental Mormonism, that is, the21 form of Mormonism practised by the followers of

22 Joseph Smith since the 1830s, has existed outside

23 the mainstream of North American culture since its

24 inception.25 Members of the FLDS also know that the

26 patriarchal structure of the FLDS, its strict27 unbending codes of conduct, personal conduct, its

28 communal organization, and most especially, its29 members -- its members' beliefs in the covenant of

30 marriage which dictates in part that partners in

31 marriage are decided not initially by the

32 participants themselves, but rather by a prophet33 who receives revelation from god, are beliefs

34 rejected, indeed scorned and reviled by many35 Canadians. Hence the problem of Bountiful, as

36 some commentators have framed it.37 Members of the FLDS know and accept that if

38 this reference is to be concerned with the defence39 and justification of those beliefs and if they are

40 to be compelled to adopt the standards and beliefs

41 of other Canadians, their way of life and their42 beliefs will be taken from them. But this43 reference is not concerned with a law banning

44 fundamental Mormonism, which, if even possible,

45 might well be the happy answer to some of the

46 parties in this reference.47 The FLDS has participated in this reference



9


1 not to defend a patriarchy and arranged marriage

2 that exist elsewhere in society, but to challenge

3 the prohibition on plural marriage contained in

4 section 293 as it applies to them. The essence of5 that challenge is that members of the FLDS freely

6 choose to consent to these practices because of7 their beliefs.

8 And I pause there to say, My Lord, that you

9 -- I ask and I'm sure that you will be alive to

10 the evidence that you will hear in this case,11 tending to the view and the suggestion that the

12 consent of women in particular and men, for that13 matter, to these practices must somehow be

14 disregarded because it offends a secular analysis15 of rights, and that consent to these practices is

16 inherently degrading to women, as many counsel

17 here have suggested. That is from a perspective

18 of others, it is not from the perspective of19 people who Practice Directive and believe in this

20 faith.21 I'm thinking particularly of the evidence

22 you're going to hear from one of the crown's

23 experts, who I anticipate is going to be saying,

24 in essence, members of the FLDS are not capable of25 giving consent even as adults, because of their

26 upbringing they're, in essence, brain damaged and27 their consent is meaningless.

28 For those former members of the FLDS who have29 had contrary experiences within the FLDS, and

30 you're going to hear from them, they are witnesses

31 proffered by the crown, witnesses are going to say

32 they were forced into marriage and suffered other33 abuses. The FLDS not does not seek to justify or

34 explain their mistreatment. If those abuses have35 occurred or if abuses have occurred, the FLDS

36 acknowledges that such abuses should be37 investigated and if necessary prosecuted, as they

38 are or should be in any community.39 In raising this challenge, the FLDS will

40 submit that the experiences of some are not the

41 experiences of all. And section 293, quite apart42 from its fundamental overbreadth, lacks the nuance43 to deal with the actual harms that may arise in

44 some polygamous relationships. It will be the

45 case for the FLDS that this lack of nuance is

46 fatal to section 293, because it is addressed to47 the status of married persons, not the actions of



10


1 married persons and to the harms themselves.

2 On the issue of harm, the FLDS notes that

3 there's very little evidence from the attorneys

4 respecting the Canadian experience, rather, the5 majority of the evidence comes from Americans

6 who've never set foot in Canada.7 Having said this and accepting that persons

8 living in polygamous relationships in the FLDS in

9 Canada have suffered harms in the context of their

10 family structure, the FLDS asserts that those11 harms are not rationally connected to polygamy,

12 which is the issue in this case as we have defined13 it, any more than the harms that arise in

14 monogamous relationships are rationally connected15 to the Practice Directive of monogamy.

16 I turn now, My Lord, to the anticipated

17 evidence of the FLDS. The FLDS has, at the

18 request of the Attorney General of British19 Columbia, undertaken what I say is something of a

20 head count, literally, because the community is so21 small, to give some perspective on the size of the

22 Bountiful community.

23 And I pause here to say that -- please make a

24 note, My Lord, that what I'm about to tell you25 relates to the FLDS in Bountiful, not to Mr.

26 Blackmore, nor his followers. Mr. Macintosh made27 some reference to this in his opening and I

28 recorded it in my opening here so you'd have the29 numbers. That head count discloses that the

30 community is comprised of roughly 550 people. Of

31 those, there are 183 people over the age of 18; of

32 those 183, 115 are married. Of the 68 people over33 the age of 18 who are unmarried, 13 were formally

34 married and are either single parents or widows.35 The remainder have not been previously married.

36 Of the married persons, that is 115 people, 6037 live in monogamy and 55 live in polygamous

38 relationships. There are 22 people in the39 community aged 16 or 17. None are married.

40 The FLDS has tendered 16 affidavits intended

41 to address the issue of social harms from its42 perspective. Of those 16, 9 are or were residents43 of Bountiful. The others are Americans.

44 I pause here to say and I'll come to this at

45 the end when we do our tender of evidence, but I'm

46 not at this stage tendering the affidavits of Oler47 and Palmer, that will be reserved to another time.



11


1 So what I'm about to say, please keep in mind, My

2 Lord, that those two particular affidavits are not

3 being tendered at this time.

4 Of the 16 witnesses, 11 are women and 5 are5 men, and 2 of the five men are Oler and Palmer.

6 This imbalance was intentional as the FLDS7 considered it important for the court to hear

8 primarily from women members of the FLDS, who it

9 is alleged are victims of polygamy. Some of the

10 witnesses were married at 16 or 17 and they will11 give the court their perspective, it is

12 anticipated, on marriage at that age, looking back13 at their lives.

14 You will not hear the voices, it is15 anticipated, of victimized automatons, but rather,

16 reflective, intelligent women, some whom agree

17 that marriage ought not to occur before the age of

18 majority -- when I mean [sic] that I mean 18 --19 and who support the change in the church policy

20 from a few years ago that provides that the FLDS21 will not sanction any marriage to a person younger

22 than the age provided for by law in the

23 jurisdiction within which they reside. And as

24 I've said, in Canada it's 18.25 The court will also hear from unmarried, adult

26 women and one unmarried adult man, who will speak27 about their belief in the covenant of marriage as

28 part of their religious faith. The court will29 hear from one man living in a polygamous

30 relationship who will speak about the difficulty

31 and pain that he went through as a father when one

32 of his sons left the community. He will address33 the assertion that young men are cast away by

34 their families because of the cruel arithmetic of35 polygamy and that the religious belief in polygamy

36 somehow trumps the normal experience that will be37 experienced by any parent when dealing with a

38 troubled child.39 You will hear from a successful, well-

40 adjusted man who made the decision to leave the

41 Bountiful community and to make his way in42 mainstream society. He will speak about the43 reasons he left the community, his continuing

44 contact with his family in Bountiful and his

45 observations about the assertion that men are

46 driven from the community.47 Of the 16 witnesses, 12 have elected to seek



12


1 the protection of the anonymity order that Your

2 Lordship has made in this case.

3 You will hear from some of those witnesses

4 that the exclusion from mainstream society5 originating in the criminal prohibition on

6 polygamy has effected them deeply, in part because7 of their fear of accessing medical or other

8 assistance, and in part because of the cost of

9 continually funding legal problems.

10 The court will hear that when problems11 including abuse arise in the community, as it will

12 in any community, it is very difficult for members13 of the community to access help because they fear

14 that to do so will result in a jail term if15 evidence of polygamy is disclosed.

16 And I should say, My Lord, it really isn't so

17 much even the jail term, but rather the fear that

18 their family will be ripped apart, that is really19 the true driving fear.

20 This theme that the criminalization of21 polygamy drives its participants to separate

22 themselves from mainstream society arises

23 throughout the evidence. Members of the FLDS will

24 testify that they do not want to live as pariahs,25 separate and apart from society.

26 It will be a neat question arising on this27 reference, in my respectful submission, whether

28 the harms associated with polygamy are exacerbated29 by its criminalization and whether

30 decriminalization, not approval or authorization,

31 but decriminalization would eventually result in

32 an ameliorization of these harms as victims of33 abuse feel able to access the law, social

34 services, mainstream society, without fear that35 they themselves or their love ones will be

36 incarcerated or have their families ripped apart,37 because of their marital status, solely because of

38 their marital status.39 At the conclusion of the case for the FLDS, I

40 anticipate, My Lord, that you will be left with a

41 more nuanced, realistic view of life in Bountiful42 than that proposed by the Attorneys. That nuanced43 view, it is anticipated, will ground the

44 submissions of the FLDS that this section 293,

45 properly interpreted, cannot withstand Charter

46 scrutiny and cannot be saved by section 1.47 That is my opening, My Lord. I suppose I



13


1 should be marking exhibits.


3 MR. WICKETT: I apologize to all counsel here. I've

4 made copies but apparently not enough. If you5 don't get one now we'll have one sent out.

6 THE CLERK: The next exhibit number is 77, My Lord.7 MR. WICKETT: The first affidavit, My Lord, is that of

8 Professor William John Walsh, an expert in Mormon

9 theology.

10 THE CLERK: Exhibit 77.11

12 EXHIBIT 77: Affidavit number 1 of Dr. William13 John Walsh filed July 17, 2010

1415 MR. WICKETT: The next is the affidavit of anonymous

16 witness number 1 filed October 20th, 2010.

17 THE CLERK: Exhibit 78, My Lord.

1819 EXHIBIT 78: Affidavit number 1 of anonymous

20 witness number 1 filed October 20, 201021

22 MR. WICKETT: The next is that of anonymous witness

23 number 2 filed also October 20th, 2010.

24 THE CLERK: Exhibit 79, My Lord.25

26 EXHIBIT 79: Affidavit number 1 of anonymous27 witness number 2 filed also October 20, 2010

2829 MR. WICKETT: Next is the affidavit of witness number 3

30 filed October 20th, 2010.




36 MR. WICKETT: Next, anonymous witness number 4.37 THE CLERK: Exhibit number 81, My Lord.



4142 MR. WICKETT: Next, anonymous witness number 5.43 THE CLERK: Exhibit 82, My Lord.

44





14


1 MR. WICKETT: Next, anonymous witness number 6.


3

4 EXHIBIT 83: Affidavit number 1 of anonymous5 witness number 6 filed October 20, 2010



9

10 EXHIBIT 84: Affidavit of anonymous witness number11 7 filed October 20, 2010

1213 MR. WICKETT: Next, My Lord, are two affidavits from

14 witness number 8, and I don't know whether Your15 Lordship would prefer those to be marked

16 collectively as one exhibit or individually.

17 THE COURT: Probably individually.

18 MR. WICKETT: Thank you, My Lord. That would be19 exhibit 85 and 86.

20 THE CLERK: Exhibits 85 and 86, My Lord.21


23 witness number 8

24 EXHIBIT 86: Affidavit number 2 of anonymous25 witness number 8

2627 MR. WICKETT: There is no witness number 9, My Lord, so

28 the next exhibit is anonymous witness number 10.29 THE CLERK: Exhibit 87, My Lord.

30



34 MR. WICKETT: Next is anonymous witness number 11.35 THE CLERK: Exhibit 88, My Lord.




41 THE CLERK: Exhibit 89, My Lord.4243 EXHIBIT 89: Affidavit number 1 of anonymous

44 witness number 12, filed October 19, 2010

45

46 MR. WICKETT: And finally with respect to anonymous47 witness number 13.



15

Opening statement by Mr. Ince


2


4 witness number 13, filed October 19, 20105

6 MR. WICKETT: Next the affidavit of Christine Wayman7 filed October 19th.


9

10 EXHIBIT 91: Affidavit of Christine Wayman filed11 October 19, 2010

1213 MR. WICKETT: And finally the affidavit of Jennifer

14 Zitting.15 THE CLERK: Exhibit 92, My Lord.

16

17 EXHIBIT 92: Affidavit of Jennifer Zitting filed

18 October 20, 201019

20 MR. WICKETT: And just to finish on the order, Mr. Oler21 and Mr. Palmer, My Lord, there are discussions

22 that are occurring and I'll advise the court as

23 soon as we resolve that and, if not, there may be

24 an application of some sort and we'll deal with25 that in due course.

26 THE COURT: Thank you, Mr. Wickett.27 MR. WICKETT: Thank you, My Lord.

28 THE COURT: Mr. Ince?29 MR. INCE: Thank you, My Lord. I'm appearing for the

30 CPAA. And I'm going to propose to confine my

31 comments to the secondary targets of the law as

32 proposed by the Attorneys General.33 The doctrine of reading down and the

34 constitutional doctrine allows courts and35 Attorneys General or anyone to suggest an

36 interpretation of a statute that can be much37 narrower than the wording of the statute reads,

38 and that allows for a surgical deployment of the39 law.

40 And our submission is that the Attorneys

41 General in this case have decided not to do that42 and, to use the words of my friend Mr. Jones, are43 using a blanket approach. And we believe that

44 blanket approach is contrary to the Charter and

45 indeed to the deepest moral values of Canadians.

46 So we adopt the submissions of the Amicus. We47 believe the legislation is fundamentally flawed



16


1 for the reasons the Amicus has provided, but I am

2 not going to repeat those arguments because they

3 apply generally and we are focussing, as I

4 mentioned, specifically on how the law targets5 people beyond the primary focus of the

6 fundamentalist communities.7 So what is that primary target of virtually

8 all of the evidence in this case? And it is

9 traditional, and we'll define that in a moment,

10 patriarchal polygamy. And it's patriarchal in the11 sense that, as Mr. Wickett just mentioned, it's

12 believed it's overtly and explicitly that men have13 a position of dominance in the culture and that

14 women are inferior and, very specifically, that15 only men have the right to multiple partners.

16 And in a patriarchal community it's not just

17 the asymmetry and the choice of multiple partners,

18 but it's men are dominant in all spheres of life19 and the example is Bountiful. And because of that

20 gender A symmetry and because of that old21 fashioned premodern patriarchal community, that

22 has attracted an enormous attention of activists,

23 journalists and so on, as to that there is a

24 serious social problem here. And they might well25 be right.

26 But, unfortunately, my friends, the AGs, have27 not restricted their attack to those communities.

28 And this is obviously a deliberate, conscious move29 on their part. They have decided to attack a

30 large number of people, perhaps dwarfing the

31 number of people in the traditional patriarchal

32 community, we'll be adducing evidence as to the33 size of that community of the non-patriarchal,

34 which hereafter I'll call the polyamorous35 community, much, much larger than the evidence

36 indicates that the traditional patriarchal37 communities are. And what are the key

38 distinctions between that polyamorous community39 and the patriarchal community as mentioned? First

40 of all, is a belief in conjugal freedom, a belief

41 that both men and women have the freedom to choose42 how many partners they want, the sexual43 orientation of the partners they want, how long

44 they want to be with their partners. There is no

45 gender disparity. Secondly, there is no religious

46 tradition in the polyamorous community. Polyamory47 is a very modern institution. It's probably



17


1 existed for 30 or 40 years. It has no religious

2 tradition. And the third difference is that

3 polyamory occurs outside segregated communities.

4 It's fully mainstream in every respect, except for5 a choice of more than one romantic partner.

6 As far as we have been able to show, and there7 is no evidence anywhere in the thousands of pages

8 filed, that polyamory is attracting any social

9 stigma. There have been no prosecutions against

10 polyamorists. So we were surprised then that when11 the Attorneys General could have taken a surgical

12 approach and excluded polyamorists, they have13 explicitly advocated for a blanket approach.

14 So how did the AGs get there? And I propose15 to quickly go through the Attorney General of

16 British Columbia's submissions. A very

17 interesting and creative idea, that the law should

18 apply only to the forms of multiple conjugality19 that were known when the law was created, and in

20 my statement I've called that the known historical21 form theory. And there's some sense to that. And

22 so the Attorney General of British Columbia says,

23 well, that would mean because homosexual pairings

24 or groups were not known in that era, the law25 today couldn't cover homosexuals, and because

26 there were no relationships where there were one27 female and many men, it couldn't apply to that

28 either.29 And the only known examples of multiple

30 partner conjugality were those involving gender

31 inequality, which, as he emphasizes in his

32 submissions, is at the heart of the prohibition,33 gender inequality. And, similarly, the only known

34 examples of multi-partner conjugality in that era35 would have a long religious tradition.

36 I'm submitting, My Lord, that this historical37 approach would be a surgical approach to the law.

38 It's fairly narrowly defining the targets of the39 prohibition. Whether or not that can pass Charter

40 muster, I'm making no submissions on, but it would

41 definitely be targeted. But for reasons we don't42 understand, having stated that approach, the43 Attorney General of BC then seems to abandon it

44 and instead of requiring that the relationship

45 exhibit gender inequality or that it come from a

46 known historical tradition, he advocates a blanket47 approach, such that the only criteria are multiple



18


1 partners and a single male. And we just don't

2 understand the logic, how you can use the

3 historical approach to exclude single female

4 relationships and exclude homosexual5 relationships, but not exclude gender equal

6 relationships and post-modern structures that have7 no long religious tradition.

8 So what my friend is arguing is that a family,

9 let's call them a family of three lawyers, living

10 in West Vancouver, a man and two women, powerful,11 educated, vital players in society, my friend is

12 advocating that they are engaged in criminal13 conduct simply because they are cohabiting in that

14 configuration. And right beside them live three15 lawyers, a female and two men, in all respects

16 equal, and they're not criminals. Now, this, in

17 my submission, inherently lacks common sense.

18 And as we are going to submit, there is no19 evidence to support such a distinction.

20 Turning to the Attorney General of Canada,21 their only limiting criteria on the scope of

22 section 293 is some sort of formalization. And

23 they use, in our submission, highly tortured

24 reasoning to import the provisions of section25 293(1)B into A, but even aside from that, as long

26 as that formalization is met, the Attorney General27 of Canada would criminalize gay relationships,

28 would criminalize egalitarian relationships, all29 they have to have is some degree of formalization,

30 perhaps a party.

31 So, again, we imagine three -- two families

32 in the Commercial Drive area now, each consisting33 of three lesbians. One of the families says,

34 let's have a party, and they throw a party and35 invite all their friends and in front of their

36 friends they say, we'd like to celebrate our love37 and mark it in some public way, and simply for

38 having done that they are, in the eyes of the39 Attorney General of Canada, criminals.

40 Yet, the family living next door to them are

41 not criminals, because they didn't go through such42 a party.43 So this is deeply disturbing to the

44 polyamorous community, that lawmakers at both the

45 provincial and the federal level are advocating a

46 position that would render them criminals simply47 for living together in a multiparty, loving



19


1 relationship.

2 Now, the criminal law here has Draconian

3 scope, as several people have noted, that this is

4 not just prohibiting or controlling rights flowing5 from a relationship, such as saying that if you're

6 in a three-party family you can't adopt children,7 or you can't have pension rights. This is much

8 more Draconian than that. This is applying to the

9 relationship itself. This is a law that could

10 break up loving families. It is as radical an11 intrusion into the private sphere of life as can

12 be imagined.13 So on what possible basis of -- can this be

14 justified? Where is the evidence of harm? I'll15 deal first with the personal harm evidence, the

16 harm pertaining to the members of these

17 relationships.

18 All of the evidence that is being adduced has19 derived from a patriarchal family structure. In

20 all of the thousands pages of evidence we have21 pored through looking, where is the research

22 showing polyamorous families are in any way

23 causing harm to their members? We find nothing.

24 So there's some allegation of somehow social25 harm, very marketplace ideas. And the idea -- one

26 idea has been that there's an innate force in men,27 this is the evolutionary theory that we're going

28 to hear lots of, that men are somehow different29 than women in this core area, and that if we allow

30 them freedom in conjugal choices that they will

31 ultimately choose polygamy and have a patriarchal

32 structure. We point out that these inherent33 essentialist arguments, talking about genes, have

34 been used before to very oppressive ends, they35 were used to disenfranchise women, they were used

36 to criminalize gays, gays were doing things37 against nature, and we now know that that was just

38 an embodiment of prejudice rather than any genuine39 assertion of harm. Evolutionary positions are

40 resorted to, in our submission, when a party lacks

41 a real case.42 And, similarly, the arguments about somehow43 monogamy and democracy are inherently linked and

44 essential, completely speculative, as their own

45 expert indicates.

46 So we ask why, when polyamory has existed for47 over 30 years, where there are thousands of people



20


1 practising it in Canada and the United States, and

2 by some estimates in the United States hundreds of

3 thousands of people, although not in a cohabiting

4 situation. There are academic experts, and we5 will tender studies of those people who have

6 inquired into polyamory, why is there no evidence7 here? Why have the crown, who are seeking to

8 criminalize this relationship, not conducted a

9 single study, not put forward an interview of a

10 disaffected polyamorous family, not done a survey?11 They are proposing to criminalize a whole group of

12 people without having done any research.13 And we -- when we ask ourselves why that

14 wasn't done, we answer it with the idea that had15 that research been done it would directly refute

16 the evolutionary theories that the Attorney

17 General is relying on. There is no cruel

18 arithmetic in the polyamory community.19 So there are no harms that have been

20 identified pertaining to polyamory, either21 personally or socially, but there are benefits,

22 and these benefits aren't speculative, they're

23 real. And they're the personal benefits of the

24 families who have filed affidavits in this case,25 of how polyamory is core to their personal

26 expression, their meaning in life.27 But there are important social benefits that

28 apply beyond just the polyamorists, and it's in29 incubating a new form of relationship. Our

30 society is based on an openness to

31 experimentation. And polyamorists are an

32 interesting subset of people who are experimenting33 in relationships, and in that experiment -- in

34 that experiment they are, for example,35 investigating jealously, jealousy, a negative

36 emotion, and polyamorists are exploring37 alternatives for jealously. They've even created

38 a word called compersion, which is the opposite of39 jealously, which is the joy one takes in having a

40 partner have another relationship.

41 My friends have not discussed, on the Attorney42 General's side, have not discussed the harms of43 their policy. Obviously, breaking up families,

44 what an enormous harm this is, to suggest that the

45 many, many people in Canada who are involved in

46 multiple conjugality situations, must -- are47 criminals, and have the risk of having the forces



21


1 of the state break up their family.

2 Now, my friend the Attorney General of BC

3 talks about, that we have to have a blanket

4 approach, maybe there isn't any harms to5 polyamory, maybe there's no personal harms,

6 there's no social harms, but we have to catch7 these in our blanket approach because we can't

8 distinguish them from the patriarchal polygamists.

9 Imagine the problems at the border. How is a

10 border guard to distinguish between polyamorists11 on the one hand and patriarchal polygamists on the

12 other? And the answer is very simple, it's very,13 very easy to distinguish between patriarchal

14 polygamists and polyamorists by very simple15 questions: Do you believe that men and women have

16 equal rights in conjugal freedom? The people in

17 Bountiful would say no. Very, very simply, no, we

18 believe men have that freedom, they can have no19 wife, one wife one or many wives. But women don't

20 have that choice. Another question: Do you21 believe, are your beliefs based on a long

22 religious tradition? Yes. The FLDS has been

23 around since the 1830s and it's based on a

24 patriarchal polygamist tradition that goes back25 mentioned in the Bible for thousands of years,

26 same with the Muslim traditions. Polyamorists27 would say no, we're just inventing this as we go

28 along.29 But imagine the problems that the blanket

30 approach gives at the border or with police

31 investigation. So imagine three people, say, a

32 man and two women show up at the border and put33 the same address. They are cohabiting together.

34 So do we have criminals here or not? This is a35 male-female-female configuration. By drawing a

36 blanket that includes polyamorists, now mere37 roommates, the border guards have to distinguish

38 between roommates and polyamorists, they have to39 start asking them invasive questions like, do you

40 sleep together? A blanket approach causes

41 enormous enforcement problems that a surgical42 approach wouldn't43 So in conclusion, My Lord, my friends the

44 Attorneys General have argued that there's moral

45 issues at stake in this case, and we agree. And

46 we think the advocacy by the Attorneys General to47 explicitly criminalize people who are living in



22


1 loving and productive families, completely in the

2 mainstream, who completely embrace the idea of

3 gender equality and personal freedom for all

4 partners, that this violates the long Canadian5 tradition of a respect for diversity, a respect

6 for social experimentation, a respect for7 individual freedom in the sanctity of their home,

8 and we believe that in advocating the breaking up

9 or the criminalization of loving families, the

10 Attorneys General have lost their moral compass.11 Those are my submissions, My Lord. And I'll

12 do the documents.13 THE COURT: Yes, thank you.

14 MR. INCE: So the date shown is the date the affidavits15 were filed, not the date they were sworn.


17 MR. INCE: Next number is?

18 THE CLERK: The next number is exhibit 93, My Lord.19 MR. INCE: So the exhibit -- the affidavit of John

20 Robert Bashinski would be number 93.21 THE CLERK: Exhibit 93, My Lord.

22

23 EXHIBIT 93: Affidavit of John Robert Bashinski

24 filed June 3, 201025

26 MR. INCE: And of Carol Jean Cosco, 94.27 THE CLERK: Exhibit 94, My Lord.

2829 EXHIBIT 94: Affidavit of Carol Jean Cosco filed

30 July 3, 2010

31

32 MR. INCE: Karen Ann Detillieux, 95.33 THE CLERK: Exhibit 95, My Lord.

3435 EXHIBIT 95: Affidavit of Karen Ann Detillieux

36 filed June 3, 201037

38 MR. INCE: Affidavit of Zoe Anne Elizabeth Duff.39 THE CLERK: Exhibit 96, My Lord.

40

41 EXHIBIT 96: Affidavit of Zoe Anne Elizabeth Duff42 filed June 3, 201043

44 MR. INCE: Affidavit of Forrest Glen Maridas, 97.


4647 EXHIBIT 97: Affidavit of Forrest Glen Maridas



23

Discussion

1 filed June 3, 2010

2

3 MR. INCE: Affidavit of Sarah Katherine White.


6 EXHIBIT 98: Affidavit of Sarah Katherine7 Elizabeth White filed June 3, 2010

8

9 MR. INCE: And Carol Jean Cosco, 99.


12 EXHIBIT 99: Affidavit of Carol Jean Cosco filed13 September 29, 2010

1415 THE COURT: Thank you. So that concludes the openings?

16 MR. JONES: My Lord, perhaps I can bring you up to

17 speed on our application discussions.

18 I've now spoken again with Mr. Burnett and I19 can advise that although he says he will still be

20 prepared to go today, he would prefer to go21 tomorrow if that is an option. We, of course,

22 weren't going to sit tomorrow. I'm not sure if

23 Your Lordship has made other plans, but that's

24 certainly an option for us.25 THE COURT: Yes, I more or less have planned on

26 attending to administrative duties, which are27 relatively significant.

28 MR. JONES: I see. Mr. Burnett indicates that -- well,29 I'll read you exactly what he put, if I may. He

30 gave me the numbers of two other lawyers who he

31 thought together would represent all of the

32 interested media, at least those who have copies33 of the thumb drive. I haven't yet called them,

34 but I will.35 He says he's also seeking instructions from

36 his other media clients, but I have to say notice37 yesterday and a call to them right now for an

38 application today is really pushing it. I expect39 it'll be for David and Michael's clients as well.

40 I'm always intending to raise a res judicata

41 argument, which takes a bit more time to properly42 put together than the usual ban arguments that I43 am familiar with. Accordingly, please convey my

44 request to the court to do this tomorrow. If the

45 chief justice instead chooses to do it today, I

46 will be there for the Sun, but the reality is the47 other media will have had insufficient notice, in



24

Discussion

1 my view.

2 So I'm in your hands, My Lord. I can pass

3 you up a copy of the publication ban notification

4 e-mail and this is, as your Lordship knows, a5 service provided by the courts through the

6 website. The media who are interested in the7 courts of British Columbia subscribe to this

8 service. And so this is the notice that went out

9 at I believe it's 12:37 yesterday indicating that

10 it would be heard at 11 o'clock today or as soon11 thereafter as possible.

12 So I'm in your hands with respect to timing,13 My Lord. Obviously, we would like to get this on

14 as quickly as possible. The videos are being15 played on the Vancouver Sun's website.

16 THE COURT: What have we got scheduled for Monday?

17 MR. JONES: We have Angela Campbell, who's a witness

18 who simply can't be moved.19 THE COURT: Right.

20 MR. JONES: Might I suggest that if we do do it Monday,21 would it be possible to start at 9?

22 THE COURT: It would be but -- I believe it would be,

23 but I don't believe an hour is enough for this.

24 Let's do it at 10 o'clock tomorrow morning and25 that depends. Let's meet at 2 today and discuss

26 whether it can be heard at 10 o'clock tomorrow27 morning, but with these other individuals.

28 MR. JONES: Thank you, My Lord, I'll make those calls.29 THE COURT: Thank you.

30 MR. MACINTOSH: My Lord, I just have a small point and

31 it's to do with my own appearance here from time

32 to time, because as Amicus, I was giving thought33 to whether I'm more than just counsel, but as a

34 practical matter, My Lord, I'm treating myself35 somewhat simply as counsel, there's a duality

36 there, and I've made efforts, arrangements that I37 intend to be here virtually the whole of the

38 hearing. There's going to be moments when I can't39 and that's with the court's leave.

40 THE COURT: Yes, of course, thank you.

41 THE CLERK: Order in court. Court is adjourned till 242 p.m.43

44 (NOON RECESS)

45

46 THE CLERK: Order in court.47 MR. JONES: Thank you, My Lord. An update, I've



25

DiscussionSubmissions by Mr. Burnett

1 confirmed with my office that there were four

2 media outlets that received the video affidavits.

3 As it turns out, at least three and possibly all

4 four are represented by Mr. Burnett who is here5 today. I'll let him introduce himself, but I

6 understand his preference is not to proceed today,7 as I said earlier, and that he is available

8 tomorrow.

9 THE COURT: Okay. Mr. Burnett?

10 MR. BURNETT: My Lord, thank you. I'm Daniel Burnett,11 B-u-r-n-e-t-t, at this point representing the

12 Vancouver Sun, Canadian Broadcasting Corporation,13 CTV Television and Global Television.

14 I can advise the court that I've had some15 communication and may well be retained by the

16 Toronto Star, as well as the Globe and Mail. The

17 first of those -- this is all happening in the

18 last 60 minutes or so, because of the timing of19 this application.

20 My request to the court is twofold: One is21 the matter not be heard this afternoon, although I

22 could be in a position to argue it tomorrow, at

23 the court's timing. I appreciate that there are

24 some scheduling difficulties you have to deal25 with, My Lord.

26 The primary reason for that is both so that I27 can get together proper argument. I've argued

28 these issues before, but some of the arguments29 made by my friend are rather novel. In addition

30 to that, one of the things I need to get together

31 for the court is an affidavit which will set forth

32 the degree of publicity on this very issue that33 has been courted by the person, the person we

34 believe is objecting -- who's asking for the ban,35 and that will be most relevant to whether there

36 truly is a basis for -- that will meet the test37 for a ban. And, secondly, there are -- because of

38 the fact there are other media who are still in39 the process of determining what their position is,

40 some of whom have the videos, some who will be

41 seeking them, and therefore it's not fair to say42 just those who have it will have an interest in43 this matter. And, as I say, I can be in a

44 position to argue it as early as tomorrow morning.

45 THE COURT: How long do you think it will take?

46 MR. BURNETT: I'm not a long-winded person on these47 things, I expect that I would be approximately



26

Submissions by Mr. BurnettSubmissions by Mr. Jones

1 half an hour, my argument.

2 THE COURT: Okay.

3 MR. BURNETT: And the second thing that I request, that

4 I've been discussing with my friend is, as he has5 expressed reluctance to reveal to me who the

6 anonymous individual is referred to in the7 affidavit of Leah Greathead that the application

8 is based upon. In my submission that's critical

9 for us to be able to meet the case, and certainly

10 it's critical for us to be able to be specific in11 our response, so we can tell the court what sort

12 of publicity the person's courted. By definition13 all four have been public, have done so, so it's

14 going to be one degree or another, but if it is,15 they've been on Time and Dr. Phil and everything

16 else. So my friend is reluctant to provide that

17 to me and I'd ask the court to direct him to do

18 so. I don't need it to be done in any public way,19 I need to be able to respond to a rather unusual

20 affidavit that is based upon the request of one21 person who I'm denied the knowledge of their

22 identity.

23 THE COURT: Anything else?

24 MR. BURNETT: No, that's it, My Lord.25 THE COURT: Well, first of all, I'll hear it tomorrow

26 morning at 10 o'clock. Mr. Jones, can I hear you27 on the issue of the name?

28 MR. JONES: Yes. Thank you, My Lord, yes. And let me29 apologize, My Lord. It is in part because I did

30 not give this matter the attention that I should

31 have when I had it, that I put the court in a

32 difficult position with respect to scheduling, so33 I apologize for that.

34 I have been, as my friend says, reluctant to35 release the name of the affiant in question. It's

36 our position that the videotaping of witnesses and37 the broadcasting of videotaped testimony cannot

38 pivot on an assessment of whether the witness has39 courted publicity. And, in fact, we would say

40 just the opposite, that the most public persons

41 who will be the most attractive of prurient42 interest in the public and therefore potentially43 by the media should have the highest degrees of

44 protection, not the lowest degrees of protection.

45 And so our position basically is that there

46 will be no -- there must be no -- there is no47 constitutional right to broadcast the evidence



27

Submissions by Mr. Jones

1 from live court or from a video affidavit based

2 simply on someone's prior public profile.

3 The interest of the witness is the same

4 interest of the court is the same [sic] and we5 could not get into, on an application, as we had

6 earlier this week to videotaped testimony, we7 couldn't have that assessed on the basis of the

8 notoriety of the witnesses, so I do object to

9 making that name known, particularly for the

10 purpose that my friend intends to use it but, of11 course, we're subject to your direction.

12 THE COURT: Well, I can't say at this point whether in13 fact there's no constitutional right to consider

14 -- or in weighing the merits of the position of15 the journalists, whether it's not relevant to know

16 who the complainer is, so it seems to me that I'm

17 going to direct that Mr. Jones provide the name to

18 Mr. Burnett off the record, and I'll hear from the19 parties tomorrow at 10 a.m.

20 MR. JONES: One more thing, if I may. We had some21 discussion yesterday about the development of the

22 library, I wanted to bring you up to speed on that

23 because it might benefit from your assistance.

24 With respect to the possibility for a physical25 library, we've been speaking with the sheriffs,

26 and there are rooms available and we could find a27 room here. I understand Your Lordship may have

28 some influence in that regard. With respect to29 the internet access, I was pleased to find out

30 that the Canadian Polyamory Advocacy Association

31 actually has a cloud site set up at Google Docs

32 where they have put every document so far in this33 matter, fortunately not the video affidavits, but

34 everything else is on this site already.35 I've spoken with my friend Mr. Ince and we're

36 quite confident that our technical people, working37 together, can make that a fairly useful resource.

38 My question to you would be therefore, if we39 can accomplish that, would you still feel the

40 necessity for the physical room? And the physical

41 room would have in it the two things, I suppose it42 would have perhaps a facility for viewing the43 video affidavits, and it would also have the

44 Brandeis brief materials which, for copyright

45 reasons, I don't think can be posted on the

46 internet. So I'm not sure if Your Lordship would47 want to do both?



28

Certification

1 THE COURT: It will be ideal if we could do both.

2 MR. JONES: Very well, My Lord. We'll see that that

3 happens.

4 THE COURT: Good. Thank you very much.5 THE CLERK: Order in court. Court is adjourned till

6 Friday, November 26th, 2010 at 10 a.m.7

8 (PROCEEDINGS ADJOURNED AT 2:13 P.M.)

9

10 I, Marina Hopkins, Official Reporter in11 the Province of British Columbia, Canada,

12 BCSRA No. 547, do hereby certify:13 That the proceedings were taken down by

14 me in shorthand at the time and place herein15 set forth and thereafter transcribed, and the

16 same is a true and correct and complete

17 transcript of said proceedings to the best of

18 my skill and ability.19 IN WITNESS WHEREOF, I have hereunto

20 subscribed my name and seal this 3rd day of21 December, 2010.

22

23

2425 ______________________

26 Marina Hopkins, RCR27 Official Reporter

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11-25-2010 transcript of canadian polygamy reference case day 4

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