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11 April 12, 20112 Vancouver, B.C.34 (DAY 40)5 (PROCEEDINGS COMMENCED AT 10:00 A.M.)67 THE CLERK: Order in court. In the Supreme Court of8 British Columbia at Vancouver this 12th day of9 April 2011 calling the matter concerning the10 constitutionality of section 293 of the Criminal11 Code, My Lord.12 THE COURT: Ms. Herbst.13 MS. HERBST: Had been Chief Justice, as Mr. Macintosh14 said in his introduction falling within my bail15 which are are the parts that largely detail the16 evidence of we have assembled.17 As this had evidence factors in had though the18 legal analysis that's been otherwise dealt with19 large parts of it have already been addressed by20 Mr. Dickson and more will be addressed today by21 Mr. Macintosh in the course of had his submissions22 so for example Mr. Macintosh will be dealing with23 the evidence of Dr. Hen direction and professor24 McDermmit so to avoid repetition I'm going to25 limit my remarks to two issues.26 The first of those is putting into context the27 attorney of British Columbia's a contention that28 Canada would be the first western nation to29 decriminalize polygamy if the challengers are30 listened to and that was said at the outset of the31 Attorney General of BC's oral submissions and also32 something found at paragraph 8 of his written33 closing.34 And secondly, I will put into context any35 suggestion that Canada would be offside of36 international law should it decide to repeal37 section 293.38 And bee fitting the fact that my time this39 morning will be relatively brief I am handing up a40 slim volume that I have also distributed to the41 other parties and interested persons just setting42 some some extracts that I will be referring to.43 THE COURT: Thank you.44 MS. HERBST: Sorry to add to the piles.45 THE COURT: That's all right.46 MS. HERBST: So turning first to the contention that47 repealing section 293 would make Canada an outlier

21 among western democracies. I want to look both at2 the wording that is found in other western3 countries and how it's been applied.4 And so looking first at the statutory wording5 apart from 11 US states to which I'll refer to a6 few minutes we're not aware of any comparable7 western democracy that has wording -- that has8 wording like a criminal prohibition like section9 293. What most other comparable western10 democracies have is a provision worded like11 Canada's section 290 and nothing more. And here I12 just want to turn to tab 1 of the condensed book.13 And tab one contains the relevant extract from our14 written argument starting at paragraph 28 and so15 it details for example England and Australia and16 France Luxembourg Switzerland Belgium have17 prohibitions that sound very much like section 92018 and I will take as an example turning to page 3.19 They're numbered at the top right. The case of20 Australia and at paragraph 34 the Australian21 legislation that was identified by Professor Cook22 provides a person who is married shall not go23 through a form Orser money of marriage with any24 person and a person shall not go through a form25 Orser money of marriage with a person who is26 married knowing or having reasonable grounds to27 believe that the latter person is married. And28 just going down a little further arer on the page29 to page 35 the Australian law reform commission30 described the critical act in this offence as31 going through a form Orser money of marriage which32 purported to be a ceremony of marriage under33 Australian law.34 And35 MR. REIMER: My Lord sorry to interrupt if I might and36 I would like to come back to this in rely we are37 dealing with issues of foreign law so the38 requirements for proving foreign law so I raise39 that issue at this point.40 MS. HERBST: Well --.41 THE COURT: Okay. You can come back it to it in reply.42 MS. HERBST: My Lord if it I can catch that perhaps in43 passing. Professor Cook was put forward as an44 expert on state practice in other countries and45 she included in her report extracts from or46 paraphrases of legislation in foreign countries47 that don't really seem to bear out what the text

31 is or certainly indicated a differentiation.2 There are issues both of comparing Canada to3 other states and issues of apart from that4 comparison itself whether international law shows5 certain trends. I say that's very much a life6 issue that Professor Cook was put forward to7 address. Professor witty to an extent although he8 tried to back off that to some extent was also put9 forward to Tracy that fact and certainly I say10 that this is something that can be taken into11 account apart from that and I say you don't need12 to go here but apart from that the scope of13 evidence that's being received on this reference14 is extraordinarily wide and to not receive15 evidence of foreign legislation including where we16 have extracts of websites that show what that17 legislation is and that's at Exhibits 122 and 12518 or that that range you say would be extraordinary19 given what the defenders have put forward.20 THE COURT: Go ahead.21 MS. HERBST: So pointing to countries as a the22 defenders do although they don't quite drill into23 the details pointing to countries that the24 defenders do that have laws like section 290 and25 not like 293 does not to advance that section 29326 should be preserved. Section 290 and 293 can't27 just be conflated many this this discussion I say.28 It makes logical sense to talk about preserving29 section 290 while repealing section 293. And in30 had fact that's what the framers of the questions31 on this reference seem to contemplate in effect32 the only questions are framed around section 29333 not section 290 and if if the challengers prevail34 on this reference is section 293 is repealed35 Canada would still have section 290 in place.36 And the distinction between section 290 and37 section 293 and the concept of preserving one and38 repealing the other is something that's common.39 It's something that was a distinction that was40 raised by the law reform commission in 19 will 8541 ask it's working paper on bigamy when it42 recommended preserving essentially of section 29043 and repealing section 293.44 And as a reference that law reform commission45 report is part of 7 which is our Brandeis brief46 the Luca affidavit Exhibit B tab 11 and carrying47 on with the distinction and the logic of speak of