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1 April 1, 2011
2 Vancouver, B.C.
3
4 (DAY 37)
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 1st day of
9 April, 2011 calling the matter concerning the
10 constitutionality of section 293 of the Criminal
11 Code, My Lord.
12 MS. GREATHEAD: My Lord, just one very brief loosened
13 to tie up and that concerns the affidavit number 2
14 of Nick Hanna. You may My Lord ship we left it
15 with -- its admissibility with Mr. Wickett some
16 time to consider that question. The Attorney
17 General of British Columbia would like to have it
18 entered as the next exhibit. I understand that
19 Mr. Wickett takes no position on the admissibility
20 but would like to make some brief submissions on
21 the issue, My Lord.
22 It has been procedurally it has been resworn
23 because we never did find -- or the original of
24 the first one has never did arrive here in British
25 Columbia. We do have the original of the resworn
26 version which has been filed.
27 And one final procedural point, we've been
28 operating under the assumption that your order
29 concerning sealing applies to this affidavit as
30 well, My Lord ship.
31 THE COURT: Right. Okay. So perhaps before we mark it
32 I should hear from Mr. Wickett.
33 MR. WICKETT: Good morning, My Lord. My learned friend
34 is correct. Upon some reflection I have decided
35 that I will not take objection to the
36 admissibility of the affidavits but I did want to
37 say to Your Lordship that the issues that you
38 might consider would be obvious grounds for
39 objection such as lateness and the hearsay aspect
40 of some of the documents our matters I propose to
41 reserve myself to comment with respect to weight
42 and use in my closing submissions.
43 THE COURT: Yes.
44 MR. WICKETT: That's really all I wanted to say with
45 respect to that My Lord.
46 THE COURT: MAUFRNG Mr. Wickett.
47 MR. WICKETT: Thank you, My Lord.
2

1 THE CLERK: That will be Exhibit 160 My Lord but the
2 original hasn't made it to the file yet. I
3 haven't seen it.
4 THE COURT: The number was.
5 THE CLERK: 160 My Lord.
6 MS. GREATHEAD: This is an a filed copy here for His
7 Lordship.
8 THE COURT: Thank you. So you'll file the original.
9 MS. GREATHEAD: I did file the original yesterday
10 morning, My Lord.
11 THE COURT: So Madam Registrar will let us know if it
12 hasn't and the same terms of the sealing order
13 with respect to to the earlier Hanna number 1
14 carry forth.
15
16 EXHIBIT:
17 .
18 THE COURT: Mr. Reimer.
19 MR. REIMER: Yes, My Lord. I just want to make a few
20 concluding submissions this morning. I don't
21 expect that I'll be long. I think I indicated 20
22 minutes. I think I'll actually be shorter than
23 that, My Lord.
24 When I began my submissions I promised Your
25 Lordship I was going to focus my submissions on
26 what Canada saw as two fundamental questions in
27 this reference. One was is there reasonable
28 apprehension that the practice of polygamy pose as
29 risk to individuals and society and the second one
30 was the proper interpretation of section 293.
31 As Your Lordship is well aware by now it's
32 Canada's position that the body of evidence in
33 this reference establishes there is a reason
34 apprehension of the practice of polygamy in other
35 words practice of multiple simultaneously
36 marriages pose the risk of surveyors and
37 significant harms to individuals and society.
38 It's Canada's position that section 293 properly
39 interpreted prohibits multiple simultaneous
40 marriages it's not about multiple simultaneous
41 sexual relations or cohabitation based relations
42 it's prohibits multiple marriages.
43 Section 293 is consistent with the evidence in
44 this reference that demonstrates that reasonable
45 apprehension of harm from the practice of multiple
46 marriages. In my submission the apprehended harms
47 of polygamy in this case and the interpretation of
3

1 section 293 drive much of the charter analysis in
2 this reference and I refer Your Lordship back to
3 the Sharpe decision that we looked at yesterday
4 where there was very much those two DWIEFing
5 forces again, the interpretation and the
6 apprehended harms.
7 Canada has gone through the charter analysis
8 detail in our written submissions starting at
9 approximately page 77. The AG of BC took the
10 court through the charter analysis earlier this
11 week during its oral submissions. Canada
12 generally agrees with and adopts BC's submission
13 I'm not going to propose go us going through
14 charter analysis again. The Court has our written
15 submissions you've heard from the Attorney General
16 BC that may not have been specifically covered by
17 BC in its oral submissions and the first point
18 dealt with the role of international human rights
19 law in the interpretation of the charter. And we
20 deal with this in our written submissions starts
21 about paragraphs 25 an 8 and again I'm not going
22 to go through this paragraph by paragraph.
23 But I think it's well established that
24 international human rights laws has been used by
25 the courts to assist in defining the contents of
26 rights included in the charter as well as the
27 justifiability under section 1 and the courts have
28 looked at a variety of human rights sources
29 obviously looked at treaties looked at
30 particularly note in this case the interpretive
31 guidelines the concluding observations the general
32 comments of treaty bodies in making or doing its
33 charter analysis and interpretation.
34 And Canada submits in this case international
35 human rights law has particular relevance in a few
36 areas or there are a few points that come out of
37 international human rights law. One is that
38 international human rights law does not support in
39 the argument that freedom of religion protects the
40 practice of polygamy. Professor Cook testified
41 that in state practice and the jurisprudence
42 that's emerged under that law under the
43 international treaties the application of polygamy
44 has been seen as a reasonable limit on the freedom
45 of religion.
46 The fact there's an international trend among
47 western democracies to prohibit polygamy also
4

1 supports an argument that any prima facie breach
2 is justifiable under section 1. And thirdly and
3 perhaps fundamentally as we said yesterday
4 international human rights sources in this case
5 confirm it the other evidence in this reference.
6 They confirm that the practice of polygamy is
7 profoundly harmful to individuals and that
8 international recognition of the harms of polygamy
9 is relevant throughout the charter analysis and
10 particularly under section 1.
11 The Supreme Court of Canada has recognize that
12 the stance taken by the international community in
13 protecting human rights is relevant in reviewing
14 litigation under section 1 and especially in
15 assessing the significance of a government
16 objective.
17 Also I point out the Wednesday specific issue
18 with respect to section 7 Your Lordship raised
19 issue of vagueness and did you need to consider
20 vagueness even though none of the parties argued
21 it. We do deal with vagueness starting at
22 paragraph 304. And in brief our submission is
23 that this provision is not vague. The test for
24 finding the law unconstitutionally vague is very
25 high it SASHLly has to be so unintelligible that
26 it fails to provide a basis for legal debate and
27 in this case we submit that the fact is capable of
28 interpretation and has been interpreted by the
29 courts in the past to apply to marriages.
30 I also make one comment with respect to
31 section 15 and this issue of analogous grounds.
32 And these submissions start at paragraph 378 of
33 our submissions and it deals with this argument
34 that polygamy or the number of spouses one has is
35 analogous ground of discrimination and a similar
36 argument was made with respect to incest in Regina
37 v. MS which is a decision from our Court of Appeal
38 from 1996 the individual in that case is a father
39 who was charged with having sexual relations with
40 his daughter in contravention of section 155 of
41 the Criminal Code and he argued that his desire to
42 have a consensual sexual relationship with a blood
43 relative and a former family through this VAEMGS a
44 personal corroborating particular which to
45 discrimination because section 1 is 55 prohibits
46 such a relationship.
47 And the Court of Appeal in that disagreed with
5

1 that argument and they said the evidence in this
2 case demonstrates the law makes it relevant
3 rational distinct between those who would have sex
4 with with their daughter and those who would not.
5 The personal atry bite Bute which the appellant
6 says leads to dust cripple nation goes to the very
7 reason for the law that exploits the child harms
8 the well-being of the family and hence the
9 community and genetically endangers the offspring
10 of the relationship.
11 And again I submit in this case the
12 distinction of section 293 draws is a prevention
13 of harms to individuals and to society.
14 And finally with respect to section 1 and
15 minimal impairment under section 1 in brief the
16 evidence that's been adduced in this reference
17 demonstrates that the problems associated with
18 polygamy are are numerous and complex. The
19 practice has been linked to harms to increased
20 rate the mortality lower levels of engine
21 indication and discrepancy between law and
22 practice of humans equalities the ramifications of
23 polygamy extend throughout society and various
24 social and legal contexts and the courts have
25 recognized that when you're dealing with complex
26 social issues the problem is entitled to deference
27 from the court in how it responds to those issues
28 and to those problems.
29 So subject to questions those are my
30 submissions this morning.
31 THE COURT: Thank you very much Mr. Reimer.
32 MR. REIMER: Thank you, My Lord.
33 MR. CHIPEUR: Good morning Chief Justice.
34 THE COURT: Good morning Mr. Chipeur.
35 MR. CHIPEUR: The Christian Legal Fellowship with
36 highlight three argument this the is submissions
37 that have been provided to you in writing
38 previously.
39 The first point we will highlight is that
40 there is binding Supreme Court of Canada authority
41 on the question of limiting the definition of
42 marriage to just two persons.
43 THE COURT: One second. While I get the materials.
44 MR. CHIPEUR: We have two documents. One is the
45 closing submissions of the intervener the
46 Christian Legal Fellowship 3 the second is a reply
47 of the intervene or Christian Legal Fellowship.
6

1 We will be referring to the joint book of
2 authorities and we have also filed an additional
3 book of authorities.
4 THE COURT: Yes.
5 MR. CHIPEUR: And we will make reference to one
6 authority from the additional authorities of West
7 Coast Leaf. .
8 THE COURT: Okay. I think I have all of the documents
9 now. Thank you.
10 MR. CHIPEUR: The first point is that we will take the
11 court through the same sex reference decision of
12 the Supreme Court of Canada from 2004. The second
13 argument that we wish to highlight before the
14 court this morning is that the power to define
15 marriage as just two persons in this section 91
16 (27) of the Constitional Act 1867 cannot be
17 limited by another provision of the constitution.
18 The third point that we will highlight is that
19 section 293 of the Criminal Code does not on its
20 face violate the charter so as to require a
21 section 1 analysis.
22 Now, before I address each of these
23 propositional statements I will address the
24 specific wording of the questions presented -- the
25 questions in this reference as they relate to
26 section 293 of the Criminal Code.
27 And if My Lord will turn to page 4 had of our
28 reply you will see that we have directly addressed
29 section 293 of the Criminal Code. It's in volume
30 1 of the authorities of the joint book. One of
31 the first issues that caught your attention,
32 My Lord, was this issue of practising a conjugal
33 union and we have to ask ourselves and certainly
34 this court must ask the question what is it to
35 practice any form of polygamy or to practice any
36 kind of conjugal union. It's 40 number 1 of the
37 joint book. It should be volume 1 of the joint
38 book and it should be tab 1 of volume 1
39 THE COURT: Too much paper. Okay so tab --
40 MR. CHIPEUR: If you look at 2 it 93 (1) A), and I, and
41 I I any kind of conjugal union. In paragraph 6 of
42 our reply our position is clear all forms of
43 polygamy are prohibited by section 2 the 3 of the
44 Criminal Code and for good public policy reasons
45 both statutory and common law unions should be
46 treated similarly.
47 And the point that we make is underlined by a
7

1 very convenient reference for lawyers and judges
2 and that is to think about practising law when the
3 legal profession act was passed in WRK or any of
4 the common law jurisdictions the practice of law
5 by someone who is not a lawyer is prohibited and
6 it's prohibited whether or not the person put up a
7 shingle and says I'm a lawyer and they aren't or
8 if they just happen to be a cult that crosses the
9 line and starts practising law it is clear from
10 the case law it is possible from the court to
11 determine whether or not two individuals believe
12 themselves to be be in a conjugal union and that
13 means that if they are treating each other as
14 though they are married to each if they consider
15 themselves married and if they representative to
16 the community that they are married it doesn't
17 matter whether or not they have actually gone
18 through a form of ceremony they are, in fact,
19 committing the crime set forth here in section 293
20 if they do so with more than one individual. We
21 think -- we believe, we submit that the section is
22 clear and it's about how these individuals relate
23 to each other because that's where the harm is.
24 The harm is about the relationship and it's about
25 the relationship between these individuals and the
26 obligations that they believe exist between one,
27 in fact, this case more than two individuals as
28 they relate to each other. That's when the
29 problem develops and that's why Parliament was
30 right to cast its definition as broad as it has.
31 With respect to the second question in this
32 reference we will defer to the submissions of the
33 two attorneys general but in general our position
34 is this: that there is no need to limit the
35 application of this section by any ready in
36 conditions [phonetic] and there is no need to read
37 down to take it out anything that is in the clear.
38 Its clear, it's unambiguous and it can be applied
39 by a court to a particular set of circumstances.
40 It's our SU mission polygamy is in all forms
41 harmful or potentially harmful. This court has
42 heard evidence that polygamy is abusive of women,
43 it's abusive of men. It it's abusive of both
44 children and adults. It limits their freedoms,
45 it's limits their exercise of free will.
46 Depriving them of a stable and secure home and
47 because it can often lead to child held deliquency
8

1 and suicide. Polygamy is socially and
2 economically harmful to women and to children and
3 is to society as a whole deprives public of the
4 social and economic unpredictable as the conjugal
5 union union of two persons finally we point out
6 the elements of the offence as they are defined in
7 section 293 do not require that polygamy or a
8 conjugal union in question involve a minor, occur
9 in the context of dependent or exploitation or
10 abuse of authority or gross imbalance of power
11 undue influence.
12 These aggravating features are appropriate
13 considerations for Crown counsel at charge and by
14 the judge at the time of sentencing. Furthermore,
15 the religious freedom arguments of the amicus cue
16 rye and certain intervenors do not apply to the
17 questions before this court in this reference.
18 Individual arguments in favour of extraordinary
19 exceptions to the general rule against polygamy
20 may only be judged where charges have been filed
21 and religious liberty arguments have been
22 advanced.
23 I would like to now turn back to the three
24 points that I highlighted at the beginning of my
25 submissions.
26 And the first point is reference re same sex
27 marriage. That is in the joint book under tab 43.
28 And this, we submit, is a very useful reference
29 for the Court for a number of reasons.
30 The first is that it is Supreme Court of
31 Canada authority. The second is that it is about
32 marriage and the third is that it is a reference.
33 And in that context there is a number of useful
34 points to make about this case particularly for a
35 trial court that has thousands, tens of thousands
36 of pages before it. Am.
37 The court took 22 pages to address a very
38 significant issue. There many counsel there as
39 many as there are here and they were able to
40 distill the question down into 22 pages. They had
41 four questions before them. They answered three.
42 They refrained from answering a fourth. But the
43 most important question that they answered is on
44 page 8 of 22 there had you will find the reference
45 questions and if it you look at the question that
46 has been asked in the conclusion you will see that
47 the first answer with respect to the questions is
9

1 the annex the proposal for an act respecting
2 certain aspects legal capacity for marriage for
3 civil law purposes -- for civil purposes within
4 the exclusive legislative authority of Parliament
5 and the yes is yes this is law under section 91
6 (26).
7 And then the second question this is on page
8 19 I'm reading the answer to question 1 is yes is
9 section 1 of the proposal which extends the
10 capacity to marry to persons of the same sex
11 consistent with the Canadian Charter of Rights and
12 freedoms. If not in what particular and to what
13 extent.
14 And the answer to that question is yes. Then
15 there will is an answer with respect to the third
16 question is it the freedom of religion guaranteed
17 by paragraph # 2A of the Canadian charger of
18 rights and freedoms protect religious officials
19 from it becoming compelled to perform a marriage
20 of two persons of the same sex is that is contrary
21 to their religious beliefs and the answer to that
22 is yes. With respect to the fourth question the
23 Court ultimately exercised its discretion and did
24 not answer that question. If one goes back to the
25 discussion of the questions before the Court the
26 court ultimately asked this question is the
27 proposed Act consistent with the Canadian charter
28 of rights and freedoms. And that is found under
29 paragraph number 5 on page 8 of the decision under
30 tab 43. Ands what the court ultimately concludes
31 and this we respectfully submit answers the
32 primary question before the court in this
33 reference today.
34 The court said with respect to question 2 we
35 conclude that section 1 of the proposed act which
36 defines marriage as the union of two persons is
37 consistent with the Canadian Charter of Rights and
38 freedoms.
39 The general gist of the argument that you've
40 heard from the amicus and other intervenors on the
41 other side has been that today because of the
42 reference in same sex marriage that the individual
43 now defines what marriage will be for them. That
44 because of the charge it TER there is a new
45 freedom, a freedom to, in fact, define marriage as
46 an individual desires or to avoid criminal
47 sanction for ignoring a definition within the laws
10

1 of Canada.
2 If the Supreme Court of Canada is right in
3 paragraph 5 then that argument is not available to
4 the Amicus or the intervenors. The question of
5 limiting the number to two is just simply not on
6 the table. That issue has already been asked and
7 answered. The submission of the Christian Legal
8 Fellowship is simply this. When marriage is
9 defined in the three marriage statutes and those
10 statutes are the civil marriage Act and this is in
11 paragraph 17 of our submissions the civil marriage
12 act the marriage prohibited degrees act and the
13 federal law, harm I nization Act when that
14 definition of marriage is limited to two persons
15 that there is no further question about that
16 choice of two. We submit that it would be within
17 Parliament's authority to choose a different
18 number. It could could choose three it could
19 choose four in unlimited number of individuals
20 could choose to be married. It's much like the
21 right to foot. With he have a right to foot but
22 the exact age as long as Parliament is acting
23 reasonably and without any colourability is
24 Parliament's to choose, that number. And we
25 submit that the definition of marriage and the
26 number of individuals that will be in a marriage
27 in this society is by virtue of section 91 (26)
28 completely within the jurisdiction of Parliament
29 and the decision they did make in this case in
30 2004 ultimately it was passed later in 2005 but
31 when that decision was made that decision to limit
32 it to two is consistent with the charter. That's
33 the direct quote from the court.
34 THE COURT: Yes. But we're not in each marriage here
35 we have two people. The problem is it's multiple
36 marriages.
37 MR. CHIPEUR: That's right and it's possible be I
38 suppose to parse this and say that with one
39 individual is getting married many times and each
40 one of those is a marriage and each one of those
41 meets that definition but it's also possible and
42 we would submit that a better interpretation of
43 those three statutes is when it says two persons
44 it means two persons and that's the end of it.
45 Now, if will his any doubt about what Parliament
46 meant in those three statutes one turns to section
47 293 of the Criminal Code because it is our
11

1 submission that 293 is a part of the definition of
2 marriage because there's no consequence to
3 ignoring section 2 -- section -- or there's no
4 consequence to ignoring the civil marriage act a,
5 the marriage prohibited degrees Act or the federal
6 law civil law harmonization Act. They simply
7 define what marriage is.
8 The enforcement provisions passed by
9 Parliament are all found in section 293 # and then
10 there are other sections before and after that
11 keel with marriage so is his our submission that
12 these sections need to be read together, together
13 these three statutes and the Criminal Code define
14 what marriage is and all under section 91 (26)
15 it's also possible to support the marriage
16 sections of the Criminal Code under the Criminal
17 Code provisions. There's no doubt about that.
18 And it is important when you read 91 (26) and 91
19 (27) and read section 293 # of the Criminal Code
20 and the marriage sections or the marriage statutes
21 that those are are considered to be the actions of
22 Parliament exercising a power or authority given
23 to Parliament under the constitution and this is
24 the consequence it's an important consequence and
25 it's because of the bill 30 reference and we make
26 specific reference to bill 30 in our argument.
27 And if you it turn to paragraph 19 page 7 of
28 our authorities -- of our argument and it's
29 authority number 4 of our additional book of
30 authorities justice Wilson of the Supreme Court
31 dealt with a very interesting argument. It's an
32 argument that seemed compelling on its face
33 Ontario had decided to give Catholic schools in
34 Ontario funding. This he were allowed to do so
35 under the constitution there was a specific
36 provision that said that Ontario could fund. It
37 didn't have to. But it could. It decided to.
38 Other Christian schools and other religions
39 decided to challenge that politically and the
40 government of Ontario said that we need to ask
41 this question. Is this constitutional. Can we do
42 it. So a reference was made to the courts and the
43 question was can the government just fund one
44 religion in this case the Catholic religion or is
45 there something unconstitutional about that a.
46 The argument was okay go ahead and fund one
47 religion but because of section 2A and 15 you have
12

1 to fund everybody. You have to treat all
2 religions equally. And there was no doubt that
3 the Court said section 2A and section 15 do mean
4 that you must fund all religions equally if you
5 are the government. You can't discriminate
6 between religions but because there's this
7 specific power and authority given to the
8 government of Ontario to fund just this one
9 religion as part of the of course the original
10 constitutional deal they say but you can't limit
11 that authority. You can't say well you have to
12 spend more money if you choose to exercise this
13 constitutional authority. And it is submission
14 there's a direct relevance to the case before you.
15 The argument that you are hearing this morning
16 or that you are hearing in this case is that yes
17 Parliament has the authority to define marriage as
18 two individuals but because there's an impact on
19 freedom of religion in this case that you must
20 make an exception that you must not apply section
21 293 to polygamous communities where they are
22 practising religion -- practising polygamy for
23 religious reasons.
24 That would involve, we submit, taking one
25 section of the charter, section 2 (a) and section
26 15 and applying it to limit the power of
27 Parliament to define marriage under section 91
28 (26) of the Constitional Act 1867 and it will also
29 involve a limitation on Parliament's Criminal Code
30 powers under section 91 (27).
31 We place our reliance though on section 91
32 (26) because it's so clear [phonetic] that the
33 number of individuals is clearly part of defining
34 a marriage. It's a contract. It's a
35 relationship. It's a conjugal union. Parliament
36 when it chose to we submit unless that decision
37 was colourable, unless that decision was
38 unreasonable in the eyes of a court that decision
39 is not reviewable. It would be like choosing the
40 age of 18. Clearly choosing the age of 18 has
41 come before the courts and 18 is a number that
42 Parliament has chosen right now for the right to
43 vote. Well what if a political party did a little
44 bit of polling and they decided everyone between
45 18 and 28 voted for the opposition parties so they
46 were going to raise the age of voting age to 28 so
47 they could stay in power. That would be a
13

1 colourable use of that power but absent evidence
2 of colourability we submit that the choice of two
3 is not reviewable because of the bill 30 reference
4 decision.
5 Those are our first two points now to our
6 third.
7 The third point is simply this, once evidence
8 of harm has been established and this this is
9 based upon the comments by the Supreme Court of
10 Canada in the dairy cases and many particular I'm
11 looking at page 11 and paragraph 36 once the
12 Parliament of Canada has determined that there is
13 harm in good faith without any colourability and
14 it's important as long as it's a non-colourable
15 decision a decision that is based on facts that
16 have been established both in Parliament and here
17 to the satisfaction of this court that a certain
18 deference arises. I'm not going to go into the
19 deference argument. You've heard those arguments
20 very clearly presented before you today.
21 But we want to highlight one particular case
22 because we believe, we submit it is an anomaly and
23 we urge you not to follow it with respect to this
24 case and not that the facts are similar but it is
25 important in our submission to consider the law
26 and to avoid this case for now because it's going
27 up through the courts and it's the Bedford case.
28 It's in the West Coast Leaf additional book and
29 it's under tab 4 and in that case -- tab 2.
30 In that case and in particular it's paragraph
31 383.
32 THE COURT: It's in your argument. Yes.
33 MR. CHIPEUR: So in paragraph 383 there's a recognition
34 of the need to show deference and the Malmo-Levine
35 argument and case that was cited by my friends is
36 highlighted but then the court goes on to do some
37 detailed analysis and it comes to the conclusion
38 that the Act or the statute in this case is
39 arbitrary that it, in fact, promotes harm, it
40 doesn't protect. With respect we submit that the
41 Bedford decision was wrongly decided. The wrong
42 test was applied and the facts were not adequately
43 addressed.
44 We note that it has been appealed. We simply
45 say we believe that it an outlier. It is not
46 consistent with the approach of other courts and
47 the deference that is required by the decision
14

1 this Malmo-Levine clearly in this case should lead
2 a court to with respect to the issue of polygamy
3 defer to Parliament's analysis of the harm and we
4 submit that the evidence is overwhelming.
5 In fact, we submit that the reason that you
6 have two trolleys of evidence is because of the
7 approach taken by the court in Bedford. The
8 standard was set too high and it then leads to
9 effectively a reargument of the policy issues that
10 really belong in Parliament and do not belong in
11 court. There is so clearly evidence of harm here
12 that we submit it's not necessary to go to Bedford
13 to ask some of the questions that were asked in
14 Bedford and we urge you not to that's our only
15 submission with respect to the Bedford case we
16 just point out its current status as being a case
17 under appeal.
18 You have been asked to apply section 1 and to
19 consider that in light of the harm that exists
20 that clearly there is evidence that should compel
21 you on the section 1 analysis. Our submission,
22 however, steps back from that it's our SU mission
23 that, in fact, there is no evidence of a violation
24 on the face of the statute. And if there is no
25 relation on the face of the statute then they not
26 passed the hurdle. The onus is on them first to
27 establish that harm and it is only -- not
28 establish the harm. To establish the violation.
29 Once they have established the violation then
30 there is an onus with respect to section 11 but in
31 this case on its face there is simply no evidence
32 that in purpose or effect this is the big M case
33 in purpose or effect there is no nothing in
34 section 2 # 3 that could reasonably be interpreted
35 to be a violation of any of the charter of rights
36 that individuals have.
37 And I take you back to a decision in this
38 court, the Queen and draw chuck from 2009
39 [phonetic] paragraphs 23 to 26 the argument was
40 freedom of expression is violated in section 2B of
41 the charter. And that's in our additional
42 authorities additional book of authorities tab 7.
43 And the argument was freedom of expression
44 allows one to you know harm individuals and the
45 response was that ask not relieve individuals of
46 cull PABLT for actions deemed criminal by
47 Parliament and we're not saying section 1 never
15

1 comes into play when you are considering a
2 Criminal Code provision. But in this case all of
3 the so called infringements are not on the face of
4 the statute but only when the statute is applied
5 do we see that there is a potential problem.
6 And the decision of the Supreme Court of
7 Canada in the same sex marriage reference is very
8 useful and it is a useful guide in considering
9 whether or not in this case one needs to go on
10 into section 1.
11 And let me take you back chief justice to the
12 decision under tab 443 and in that case the
13 argument was in light of the fact there would be a
14 potential problem with the change in definition of
15 marriage, the argument would be that somehow
16 individuals who had a religious conviction against
17 performing a same sex marriage as an official or
18 hosting a same sex marriage in a religious
19 building or a church or synagogue.
20 This is what the court said and I'm looking at
21 page 16 and in particular paragraph 53 first the
22 court said the protection of freedom of religion
23 afforded by section 2 an of the charter is
24 produced and jealous ly guarded in our we note
25 that should impermissible conflicts occur the
26 provision at issue by definition fail to
27 justification test under section 1 of the charter
28 and will be of no force or effect under section #
29 52 of the Constitional Act 198 # # 2.
30 In this case the conflict will cease to exist
31 then going down to paragraph 56 the court says
32 people have said religious officials have said if
33 you change the definition of marriage then our
34 freedom of religion will be impacted and so this
35 is the response from the Court.
36 Against this background on paragraph 56 we
37 return to the question. The concern here is that
38 if the proposed Act were adopted religious
39 officials could be required to perform same sex
40 marriages contrary to the religious beliefs. And
41 then he FWS on to say absent State compulsion on
42 religious officials this conjecture does not
43 engage the charter. If a promulgated statute were
44 to enact compulsion we conclude such compulsion
45 would almost certainly run afoul of the guarantee
46 of freedom of religion given the expansive
47 protection afforded to freedom of religion under
16

1 2A of the charter. You have heard weeks much
2 evidence of how this Act might apply to Bountiful
3 but but the questions you have been asked do not
4 apply to Bountiful. You have not been given a
5 case, a specific case out of Bountiful, you have
6 not been given any hypothetical out of Bountiful
7 or any other community in this country and while
8 it may be and we don't make any submission on this
9 point, but it may be that there may be an
10 individual, there may be a group of individuals
11 that can come before some court in the future and
12 say this section 293 is under section 24 of the
13 charter not applicable to me because I have a
14 charter argument that is convincing to the court
15 at the time.
16 But that argument needs to be left to another
17 day and the reason we submit that is because that
18 is what the Supreme Court of Canada did with
19 respect to the same sex marriage reference
20 reference. They said if there is a conflict in
21 the future and if the application of this law
22 leads to circumstances where someone's charter
23 rights are found by a subsequent court on the
24 evidence to be violated the Court at that time
25 should address it but this Court should not assume
26 that that will happen.
27 And we submit that that is the proper approach
28 for a trial court where a lieutenant governor has
29 asked a question with a statute that on its face
30 in both its purpose and effect does not violate
31 freedom of religion. It simply defines marriage
32 and says if you go outside that definition, if you
33 practice marriage outside of that definition then
34 there will be criminal law consequences because we
35 Parliament believe that there is harm associated
36 with practising polygamy or conjugal union.
37 I would like to at this time Chief Justice
38 take you to our reply. We will not have a right
39 of further reply and we do not need it. I will
40 though bring to your attention the points that we
41 make in our reply brief
42 THE COURT: Thank you.
43 MR. CHIPEUR: In paragraph 1 we point out that the
44 Amicus and the intervenors have acknowledged
45 implicitly at that that the constitutional
46 authority of defined marriage rests with
47 Parliament. We point out the argument that we've
17

1 already taken you through. We have seen nothing
2 in the arguments from the Amicus or the other
3 challengers that would even address the question
4 that we've put before you let an alone convince
5 you to reflect our position with respect to
6 section 293 of the Criminal Code.
7 Nothing in what the challengers have said
8 suggests that there's something wrong with 293 on
9 its face. Instead, you have been given a series
10 of what ifs. What if this were to be the case.
11 What if that were to be the case and in some cases
12 there's evidence that its a factor but even if you
13 have evidence in this reference that you can
14 conclude as a matter of fact that the application
15 of this in that hypothetical or, in fact, current
16 existing circumstance could violate a charter
17 right that an is not the question that you've been
18 asked and we urge you not to answer it.
19 Finally, we would like to bring to your
20 attention the evidence of the two expert witnesses
21 that we called to provide evidence to this Court.
22 The first is Dr. SHO SHA no Grossbard. Whatever
23 might be said of individuals who have been asked
24 by either side to grant -- to give opinions about
25 the issue in this case whether they are hired guns
26 and therefore you should somehow not give as much
27 weight to their evidence, that cannot be said with
28 respect to Shoshana Grossbard. She was trained at
29 the University of Chicago as an economist under
30 professors nine of whom ultimately received Nobel
31 prizes for their work. She is individuals trained
32 her and then she spent the last three decades
33 studying just this subject and that is families
34 and it in particular with a specialty in polygamy.
35 She started out in her testimony true TRAL purely
36 as an academic asking the question is this or is
37 this not good for women. Is this or is this not
38 good for others in society. And society as a
39 whole.
40 After three decades of studying she has
41 concluded and under cross-examination there was no
42 shaking of that, she has concluded that it is
43 harmful to women, and we're talking economically,
44 economically harmful to women, economically
45 harmful to children as well and to society.
46 And the reason that she said so I'm not going
47 to go into great detail on because you heard her
18

1 first hand and I think she's even more convincing
2 than I or any other lawyer could be.
3 But let me read to you the summary she gave
4 her last statement before she stepped down from
5 the stand.
6 Is said in the cultures and societies
7 worldwide that have embraced it polygamy is an
8 associated with undesirable economic societal
9 physical psychological and emotional factors
10 related to women's well-being." We submit that
11 that is compelling evidence.
12 We also note the evidence of our other expert
13 Timothy Dunn field and while there this is an
14 unusual case it is worthy of note that he was not
15 called [phonetic] to be contradicted. He was not
16 called to be cross-examined and therefore his
17 conclusions with respect to the lost boys should
18 stand as evidence that you can rely upon Chief
19 Justice and his conclusion that the only way that
20 a polygamous society can work is by disposing of
21 young boys there's no other way and that if you
22 dispose of young boys in a society and give them
23 no families beings no homes nowhere to go that
24 they will engage in harm to themselves and others
25 they will engage in crime. They will engage in
26 suicide. They will abuse drugs, actual and other
27 substances that he the only way a polygamist
28 society can, would. Now, small groups of
29 polygamists within a larger society might not be
30 noticed but the impact on the individual boys that
31 are excluded is real to them even though as a
32 society it may not be a generally impactful.
33 That impact on that one boy even one justifies
34 the intervention of Parliament and justifies the
35 actions that Parliament has taken under section
36 293 of the Criminal Code.
37 In conclusion, we acknowledge the importance
38 of freedom of religion. Freedom of religion is
39 the first freedom and we submit the most important
40 one. Therefore we do not ask that this court
41 dismiss the freedom religion claims lightly. A
42 high standard should be applied but in this case
43 there are no freedom of religion violations in
44 section 293 on its face. You've heard from
45 individuals who have been before you and who have
46 testified about how their religious freedom is
47 going to be impacted. They believe if section 293
19

1 is applied. These individuals which we say are
2 trapped in polygamy deserve the greatest sympathy
3 and the greatest empathy, the greatest concern and
4 respect from this Court and from all of us. It it
5 is difficult to survive in a polygamous community
6 but the individual opinions of these individuals,
7 these persons within polygamous communities can
8 have no constitutional significance or any
9 constitutional consequence.
10 That is because under Canadian law no one can
11 agree, no one can consent to slavery or to any
12 other form of charter violation and in conclusion
13 we leave the question of the constitutionality of
14 section 293 to this Court and if you Chief Justice
15 have any questions for us I would happy to answer
16 them before I step down.
17 THE COURT: Thank you Mr. Chipeur. Thank you that's
18 fine. I think we'll take the break so I'm clear
19 on this we have BCTF and then real women and then
20 West Coast Leaf? Is that the thank you very much.
21 15 minutes.
22
23 (MORNING RECESS)
24
25 THE CLERK: Order court.
26 THE COURT: Ms. Trask.
27 MS. TRASK: Good morning, Chief Justice.
28 It's Robin Trask T-r-a-s-k counsel for the
29 British Columbia teachers federation.
30 And we have filed a written closing submission
31 in this reference. I'm going to be following that
32 submission generally sequentially but I'm not
33 going to review the argument in its entirety
34 particularly the areas of law that have been
35 already covered by my friends.
36 There are also an a few areas I intend to
37 expand upon and many terms of the documents that
38 you will need before you that would be a copy of
39 our written closing submission and I am also going
40 to make brief reference to a document that's
41 attached to the submission of the CCRC they have
42 attached the convention to their submission I'm
43 going to make reference to that.
44 And I can file a copy of our supplemental book
45 of authorities with the Court.
46 THE COURT: I have that.
47 MS. TRASK: I'm not going to take you throw that you
20

1 but that will be for your reference.
2 The BCTF is extremely concerned about the
3 harmful effects that polygamy can have and has it
4 on the lives of women and children including on
5 children's educational opportunities and
6 attainment. There are three main areas that I
7 intend to address today. First I am going to
8 briefly review our position on the elements of the
9 offence in section 293 secondly I am going to
10 spend a bit more time reviewing the harms to
11 education that are in evidence in this case and
12 finally I will review some of the submissions
13 regarding the law which I don't believe have been
14 covered by my friends and we hope will be of
15 assistance to this Court.
16 Turning first to the elements of the offence
17 at paragraph 11 of our written submission. We
18 explain that we agree with the Attorney General
19 for British Columbia that it seems clear that at
20 the time section 293 was enacted Parliament was
21 concerned with the harmful effects of the practice
22 of polygamy and the scheme and purpose of the
23 provision was clearly addressed to harms
24 attributed to polygamy.
25 At paragraph 14 we note that some of the
26 challenges to this section have stated that if
27 Parliament meant to Tracy harm it could not be
28 done through a provision that criminalizes the
29 victims of the crime as well for example the young
30 girls and women who have participated in these
31 polygamous marriages.
32 The BCTF submit this is provision does not
33 criminalize these young girls and women. We say
34 this. Young girls and women in the FLDS have only
35 married one man. They have not committed a crime
36 under section 293 of the Criminal Code. It's only
37 their husbands in taking multiple wives who have
38 committeded a crime under this section. Section
39 293 refers to any form of polygamy or any kind of
40 conjugal union with more that you know one person
41 at a time. As the Attorney General for British
42 Columbia submissions note the Webster's dictionary
43 defines polygamy as the having of a pleuralty of
44 husbands or wives TAET and then it explains
45 usually meaning several wives as opposed to
46 several husbands.
47 If polygamy means having more than one spouse
21

1 then the plain meaning of practising or entering
2 into polygamy seems to be that only those who
3 enter into multiple unions would be caught by the
4 section. Young girls and women in the FLDS who
5 are married to a man are only in one major
6 conjugal union. And we say this would be true
7 regardless of the definition of union.
8 It appears if this is the way the sec was
9 interpreted by police and PROB prosecutors when
10 charges were laid by two men in beautiful we say
11 is the correct interpretation. The CCRC yesterday
12 in their sub misses noted we can not rely upon the
13 good graces of the Crown not to charge victims of
14 polygamy but perhaps we can note the commonsense
15 and we say correct interpretation of this
16 provision was the one that was used by police in
17 Crown when charges were laid against two men in
18 Bountiful.
19 That part of the interpretation we say is
20 clear. Other aspects of the interpretation in
21 section 293 we submit contains some a.m. big itty
22 which is evidence from the variety of
23 interpretations before this court from the parties
24 and interested persons.
25 At paragraph 16 we submit that the courts have
26 a long history of undertaking provides reading
27 down and reading in.
28 In the cases in which the Courts have employed
29 these techniques it's not always clear whether
30 they are, in fact, reading in or reading down in
31 some circumstances the courts have described the
32 exercise they have undertan as interpreting
33 litigation placing in context and we have cite
34 cited cases that are examples of that and I want
35 to take you through one of those and that's the
36 case that was decided by the Supreme Court of KAV
37 in 2009 and is set out at paragraph 17 of our
38 submissions in AC and Manitoba a 15 year old child
39 with and her parents refuseded medical treatment
40 for the child is not being in conformity with her
41 religion. When the order ordered this treatment
42 the family brought a charter challenge COMBENS the
43 provision in the provincial child and family
44 services services Act which permitted the
45 authorize treatment when it KRed to be in the
46 child's best interests. For a child would was 1
47 or older the Act stipulated the best interests of
22

1 child would be most effectively promoted by
2 allowing the child's views to be determinative
3 unless certain cite the KWA are met. When the
4 child is under 16 no such presumption was present
5 in the legislation. The court held that properly
6 construe STOD take the 15 year old girl's maturity
7 into account the constitutional balance between
8 the individual's fundamental right to autonomous
9 decision making and a protection of vulnerable
10 children from harm. The Court read the best
11 interests standard as including a consideration of
12 the child's views some might say that is reading
13 in or reading down. In the majority decision
14 there is no discussion of reading in or reading
15 down. As statutory interpretation.
16 As is already been submitteded by my friends
17 who you have heard from this week at paragraph 20
18 we note that Canadian courts have consistently
19 held that if a statutory provision is capable of
20 an interpretation that is constitutional and one
21 that is not then the Court should choose the
22 construction that conforms with the charter. The
23 BCTF submits in this reference whether the Court
24 views THZ exercise as reading down beings reading
25 in or interpreting the provision section 923
26 should be interpret as prohibiting ex-employ at a
27 tiff polygamous relations. We agree with the
28 analysis submitted by West Coast Leaf in this
29 regard. You will be hearing from them on this
30 West Coast Leafs to women and girls polygamy is of
31 course also very harmful to boys. As the evidence
32 in this reference has established and we say that
33 an interpretation of this section that prohibits
34 ex-employ at a tiff polygamous real estates also
35 addresses harms to these boys.
36 Properly interpreted in this way the BCTF
37 submits section 293 of the Criminal Code conforms
38 with the rights of the charters and freedoms.
39 I am going to turn now to the evidence before
40 this Court regarding the harms to education. You
41 may recall from our opening statement that the BC
42 effectiveF submit as do several of the other
43 persons interests persons the Court must consider
44 a balancing of charter rights specifically the
45 intersection of section 7, 15 and 28. Our
46 submissions on this point focus on the harms of
47 polygamy to children and their educational
23

1 opportunities and aa containment.
2 At paragraph 22 we submit that the Court has
3 heard extensive evidence regarding the harms of
4 polygamy both within Canada and around the world.
5 The evidence in this proceeding demonstrated that
6 polygamy is associated with very tangible harms to
7 education.
8 Beginning at paragraph 23 we review some of
9 the expert testimony in this case regarding harms
10 to education. We have entitled this section
11 general harms to education but because this is
12 generally the big picture evidence regarding
13 harms. For example professor Ross McDermott based
14 on best this polygamous societies girls are less
15 likely to be educated and up to half of the boys
16 are rejected interest from are their primary
17 communities.
18 I won't take you through all of the expert
19 evidence we have summarize here but I would like
20 to refer to the evidence of Dr. Beall which is
21 noted beginning at paragraph 27 of our submission.
22 We note that Dr. Beall was qualified in this
23 proceeding as an expert clinical psychologist
24 entitled to provide opinion evidence on the
25 psychological, emotional and social impacts of the
26 practice of polygamy on individuals from the FLDS
27 communities. The BC effectiveF submits Dr. Beall
28 truly present as an expert in this field and he
29 clearly understood his role as an expert witness.
30 He was able to offer evidence that we submit is
31 very helpful to this court. After paragraph 28 we
32 note Dr. Beall testified that most of his parent
33 patients had attended the FLDS school and Salt
34 Lake City although some had had attended a public
35 school run by the FLDS members. Dr. Beall
36 explained that the PVLS school in Salt Lake City
37 has an if a with an hour every morning dedicated
38 to please hood instructions from LOODers and so
39 forth. Dr. Beall STEFD in the FLDS community
40 there was a lot of indoctrination in the education
41 system. In our submission this sounds very
42 similar to the schooling can he have heard about
43 in Bountiful.
44 Dr. Beall noted that a lot of work needed to
45 be done with students from polygamous communities
46 in order to catch them up with their peers. And
47 very importantly we say Dr. Beall also noted that
24

1 the individuals he had worked with had not
2 acquired critical thinking skills through their
3 education.
4 Turning to the independent school system in
5 British Columbia at paragraph 32 the BCTF submits
6 in order to understand the harms to education that
7 have occurred within British Columbia we must
8 understand the system within which this education
9 is provided and the required educational standards
10 in the province. Under the school Act children
11 between the ages of 5 and 16 must be EP rolled in
12 an education program. One of the ways that
13 parents can comply with this legislation is by
14 enrolling their children in an independent school.
15 Mr. Van better boom the inspector of VIND schools
16 verified in this proceeding and he explained the
17 difference between different types of independent
18 schools and you might recall he spoke about group
19 1, 2, 3 and 4 schools. Group 1 and 2 schools
20 receive funding to pay operating expenses and
21 under the independent school Act group 1, 2 and 4
22 schools are all required to meet educational
23 standards established by the minister of education
24 and to employ BC certified teachers. But as we
25 learned from Dr. Van DER boom what is meant by a
26 certified teacher has a different meaning under
27 the independent School Act than it is it for
28 public schools as the officer of the inspect for
29 of independent schools it certify teachers to work
30 in independent school and also issue letters of
31 permission to individuals to allow them to teach
32 in an independent school.
33 At paragraph 39 we explain that independent
34 schools are required by legislation to meet the
35 ministry of education curriculum requirements
36 which are identified in the integrated resource
37 packages also referred to as IRPs and the
38 prescribed learning outcomes that are also
39 referred to as PLOs.
40 The IRPs contain the legally required content
41 of the professional and group 1, 22 and 4 had
42 schools are required to teach PLOs. The POs
43 describe what students are expected to know by the
44 end of a particular grade I realize at the time
45 when Mr. Al ties and I were asking Mr. Van DER
46 boom by the seemed far afield from the question
47 before the Court concerning section 293 but we
25

1 submit it's vitally important that we understand
2 what provincial curriculum requirements are and
3 the educational opportunities that are afforded to
4 other students in the province so that we can
5 understand the harm that has occurred to student's
6 education in Bountiful.
7 We question Mr. Van DER boom about the social
8 studies PL OS which includes critical thinking
9 skills in each of grades 3 through 7 and Mr. Van
10 van greed this is just as Dr. Beall had also
11 indicated.
12 We looked into particular at the Grade 6
13 social studies curriculum which includes the
14 Charter of Rights and freedoms at paragraph 14th
15 we node that for those who attended school before
16 the introduction of the CHAER TR this but it's
17 important that we are aware that an understanding
18 of the charter of rights and freedom is an
19 essential element of the Grade 6 cribbing limb
20 it's an mandated by its includings inment POs.
21 Amicus took exception to the AGBC's a questioning
22 of witnesses about post secondary education and
23 careers pursued by members of the FLDS. We agree
24 with the Attorney General of British Columbia this
25 question was not about a middle class bias. It
26 was about educational opportunities which the BC
27 TF submits are opportunities that should be
28 available to all students in the province.
29 Turning to the section we have entitled
30 inadequate instruction. We have reviewed some of
31 the evidence that we say is indicative of the
32 inadequate instruction provided by the independent
33 schools in Bountiful. I will not take you through
34 all of this but I do want to highlight just a few
35 points. And starting at paragraph 51 we review
36 some of the evidence from Truman Oler. Truman
37 Oler testified in this proceeding regarding his
38 personal experience of growing up and attending
39 school in Bountiful. As the Attorney General for
40 British Columbia has already noted Truman Oler
41 gave his testimony in a very thoughtful manner.
42 Truman Oler was 29 years old when he testified
43 here. He left the community when he was in his
44 early 20s. We submit his experience in Bountiful
45 is not of a long arrange historical events ORS an
46 anomaly. We sub hit his students in Bountiful are
47 experiencing in his affidavit entered in evidence
26

1 at this proceeding Truman Oler swears that I went
2 to school in Bountiful from cinder GAR enthrough
3 Grade 9 I do not remember getting any practical
4 education at the beautiful school that would have
5 prepared knee when I was growing up the boys were
6 encouraged to leave school early to work. The
7 girls were taught their role was to have loots of
8 IRN change and obey the men. I do remember we
9 were talk children for one two hourser P day.
10 Priesthood duty obey everything you were told by
11 the prophet or the bishop and in this way show you
12 were worthy to have one or more wives assigned to
13 you. This is was a lesson the boys and girls were
14 taught every day. Not just at school but also at
15 home. The BCTF submits teaching one obey
16 everything you were told by the prophet or bishop
17 is clearly in contrast with the essential
18 component of critical thinking which is a skill
19 students are expected to learn. This is an
20 important part of the curriculum and this PLO is
21 clearly not being met in Bountiful and we submit
22 this constitutes a serious harm to education.
23 Truman Oler did testify that he received
24 significant religious instruction and similarly
25 anonymous witness 3 testified that tapes of Warren
26 Jeffs SER HONs were played during the morning
27 religious instruction at Bountiful elementary
28 secondary school. In it light of what we have
29 heard in views of teachings of Mr. Jeffs the BCTF
30 submits this is highly concerning. At paragraph 5
31 # we have noted that Truman Oler testified that
32 the only thing that he heard about the charter of
33 rights growing up was about the rights and freedom
34 to live and teach religion. He testified that
35 other than religious freedom we CHEFR knew of
36 charters of rights and freedoms. Testified later
37 looked up the Charter of Rights and concluded that
38 the teachings of that one religion are taking away
39 all the rest of the rights on that charger it.
40 The BCTTF submits an educational that does not
41 teach about the key components does not comply
42 with the legally mandated PLOs and constitutes
43 harm to these students' education.
44 The BCTF submits that the independent school
45 system and the oversite by the office of the
46 inspector for independent schools has failed to
47 mitigate harms to students' education in
27

1 Bountiful. We have serious concerns regarding the
2 letter of permission that we learned during this
3 proceeding was issued to a perhaps well meaning
4 but clearly unqualified young whom is clearly
5 teaching in Bountiful elementary secondary school.
6 We also have serious concerning regarding the
7 inspection process and we find it troubles THEE
8 inspections have been unable to address serious
9 problems in Bountiful. We have noted in our
10 submissions at paragraph 64 that the inspections
11 which take place are between 1 and 2 days in
12 length. The inspectors themselves are
13 generallifully from a small community of Christian
14 schools in the province. Independent schools are
15 responsible to self report on a number of
16 important issues. When interviews they meet with
17 the principal and teachers the. They may have a
18 conversation in passing with student but they do
19 not interview students.
20 We say it's particularly disconcerting that it
21 appears that the inspectors have never made any
22 inquiries regarding whether any of the young
23 female students were married. Mr. Van DER boom
24 agreed that he was not aware of any members in the
25 valuation committee ever making a report to a
26 child protection worker regarding any students in
27 Bountiful.
28 At paragraph 74 we submit it is troubling that
29 Bountiful schools have continued to receive public
30 funding while students education in niece schools
31 has continued to be harmed. At paragraph 75 we
32 submit that the evidence in this reference has
33 established that the regulation process for
34 independent schools is inadequate to protect
35 students from the harm their education is
36 suffering in Bountiful.
37 And although we do say this oversight of
38 process is thorough inadequate for this time of
39 community failure may also be due, in fact, this
40 type of harm is to integral and persuasive to
41 polygamous communities.
42 Counsel for the Attorney General of British
43 Columbia has already reviewed some of the evidence
44 regarding graduation rates of students in
45 Bountiful and I am not going to repeat that. At
46 paragraph 77 we have noted that students for
47 Bountiful appear to be unaware that their future
28

1 education processes are affected by the fact they
2 do not have a dogwood certificate. This clearly
3 speaks to the limited opportunities available to
4 these students. The BCTF also submits that the
5 education of students in Bountiful has been
6 affected by the MIRJ and subsequent pregnancies of
7 young girls in the community where as schools
8 should offer protection from these types of abuses
9 in Bountiful this abuse has been specifically
10 accepted at these schools. The AGBC has already
11 reviewed the evidence from anyway anonymous
12 Witness No. 4 who recalled she and her 15 year old
13 sister wife attended Bountiful secondary school
14 TOEKT. At this time their husband was in their
15 early 40s no one at raised any concerns about the
16 sexual abuse of these students. The school
17 clearly is not offering protection to these
18 students. Such protection that is generally just
19 taken for granted a the role of schools and that
20 we say with certainty would be offered in a public
21 school setting.
22 The CCRC also reviewed yesterday the
23 requirement to report child in need of protection
24 under sections 13 and 14 and that relates to our
25 submissions here.
26 In considering the harms to education the BCTF
27 submits the court she she had the concern of true
28 than Oler when he testified and I just feel it
29 is -- just not necessary at all to take -- to take
30 a child boys young boys, young girls ability and
31 willingness to think away from them.
32 Those are our submissions concerning the
33 evidence of harms to education. And I'm going to
34 turn now to the charter analysis and other law
35 that is contained in our written submissions and
36 as much of this is already been reviewed I'm not
37 going to spend very much time on this.
38 And you will recall from our opening statement
39 and it's also in our closing submissions that we
40 spoke to the importance of balancing rights under
41 the charter and the these section 7, 15 rights of
42 our individuals.
43 And I'm going to take you back to actually the
44 beginning of O our submission just for one point
45 where at paragraph 7 we've noted that although the
46 FLDS submits it only wants polygamy decriminalized
47 and not necessarily legalized if they are
29

1 successful in their argument that section 293
2 violates the charter presumably charter challenges
3 to marriage and immigration laws would also be
4 successful.
5 And the Amicus at paragraph 584 of their
6 submissions has said that there may be problems
7 attaining standing to bring such a claim but we
8 submit surely one who applied for a marriage
9 license and was denied on the basis they were
10 already married could bring a charter challenge in
11 response.
12 And although the Amicus notes when it KAMS to
13 immigration law do not have an unquestionable
14 right to remain in the country law could be suss
15 is accept TOIBL a charter challenge and for
16 instance this could be by a citizen who wants to
17 responsible senior a second wife.
18 Turning to our charter analysis regarding
19 section 2A which begins an at paragraph 91. I
20 just want to make some brief comments about our
21 analysis of this section. We say that in
22 considering whether or not there is a breach of
23 section 2A the case law demonstrates that freedom
24 of religion can be limited when a person's freedom
25 to act in accordance with his or her believes may
26 cause harm or interfere with the rights of others.
27 We say that this is such a case and that in this
28 reference the Court should conclude that there
29 have been no breach of section # 2A.
30 We also say that there is no hierarchy of
31 rights under the Charter of Rights and freedoms.
32 At paragraph 99 we submit that freedom of religion
33 is not absolutely and cannot be interpreted to
34 allow for the abuse exploitation or oppression of
35 women and children. Nor can it allow for the
36 unequal treatment of or limitation of rights of
37 women and childrens including their right to an
38 appropriate education.
39 The last general comments I want to make about
40 the law around Canadian's international
41 obligations and I'm going to expand upon our
42 submissions that start at paragraph 117.
43 In this regard we generally agree about the
44 submissions for Canada and the CCRC regarding
45 Canada's international obligations and the
46 convention of the -- on the rights of the child is
47 attached to the closing submissions of the CCRC
30

1 and I want to take note of O article 28 and 29
2 which are contained in that convention and those
3 start at page 55.
4 THE COURT: Thank you. Article 28 starts there and
5 indicates that the state parties recognize the
6 right of the child education and here we want to
7 note that it's important that we recognize these
8 rights as the rights of children is not only the
9 choices of parents that matter.
10 We submit that children need to be educated in
11 order to make their own choices. Were this right
12 to education is not met are STRIEFLed and their
13 ability to make hoists choices is impaired.
14 Section 29 of the convention speaks to the
15 goals and content of education and I'm just going
16 to read here two subsections.
17 Section 29 B provides that the state parties
18 agree that the education of the child believe be
19 directed to the development of respect for human
20 rights and fundamental freedoms and for the
21 principles enshrined in the charter of the united
22 nations.
23 Article 29D provides that the state parties
24 also agree that the education of the child shall
25 be directed to the preparation of the child for a
26 responsible life in a free society in the spirit
27 of understanding, peace, tolerance, equality of
28 the section sexes and friendship amongst all
29 people, ethnic national recommendation GROP and
30 persons of indigenous origin. We submit that
31 Canada's obligation under this convention we have
32 heard about in this reference are allowed to
33 continue.
34 I would like to conclude by submitting that as
35 the submissions you have already heard have noted
36 there is vast body of evidence of the harms of
37 polygamy before you. We agree with the Attorney
38 General for Canada that the test in this case of a
39 reasonable apprehension of harm has been more than
40 met. Subject to your questions Chief Justice
41 those are all of my submissions.
42 THE COURT: Thank you very much Ms. Trask. And
43 Mr. Bake he.
44 MR. BAKER: My Lord Jon on this baker appearing for
45 real women.
46 My Lord [phonetic] I tried to keep in mind
47 your initial order that intervenors or interested
31

1 parties should not be -- should not duplicate and
2 I am not going to make an effort -- any effort to
3 duplicate the 600 pages that approximately have
4 been submitted by both Attorney Generals even
5 though I recognize that it it's difficult to be
6 right for 600 pages the real women basically adopt
7 those submissions.
8 It's a familiar maxim that's been attributed
9 to hard cases and great cases make bad law
10 [phonetic] cases that stir extensive public
11 interest may result in a decision and hence a rule
12 of law that either goes too far or doesn't go far
13 enough. Unlike references cases are driven by
14 their narrow facts and a criminal case with a
15 particularly sympathetic or unsympathetic accused
16 once it is the focus of the media can produce a
17 result that distorts the law in unanticipated way.
18 If this were a case instead of a reference and
19 the accused was the perfect husband with four
20 perfect wives and 20 perfect children it's quite
21 possible that all of the issues associated with
22 the institution of polygamy such as incest, abuse,
23 sexual KS employ experimentation, inequality, lost
24 boys might not be in evidence. The Amicus warns
25 that the prohibition of goes too far. Polygamy he
26 says itself is harmless or at least not that
27 harmful. It is engaged this with consent and he
28 says the law should go after the criminal Acts
29 committed by polygamists that are already are for
30 the most part crimes and not the persons who just
31 chose to be polygamists.
32 So in a hard case section 293 might be struck
33 for all the reasons given by the Amicus. But it
34 would also be bad law. Because this reference has
35 shown there's a lot more to it. This reference is
36 not about developing a rule of law out of a case
37 involving either the perfect polygamists, family
38 or the most evil deviant PROVMENT it's about
39 polygamy as an institution and how Parliament has
40 dealt with it. It's about whether section 293 of
41 the Criminal Code can stand constitutional muster
42 in light of all that is known or can be known
43 about polygamy.
44 The Court has studied the issues from the
45 broadest possible perspective and then will be
46 able to decide and advise whether the law goes too
47 far or not far enough. Real women says that
32

1 polygamy is legally morally, socially economically
2 wrong. As a reference this proceeding is not
3 linked O to some particular accused. The court is
4 able to avoid making bad law because of the
5 breadth of questions it's beened ask and the scope
6 of the evidence that it has heard. The Court has
7 heard PR residents of Bountiful as well it has
8 heard from any conceivable field of academia. In
9 answer to the reference questions real women
10 submits that section 29 the 3 of the Criminal Code
11 of Canada is consistent with the Canadian charter
12 of right and freedoms. Section 29 the 33
13 prohibits polygamy. All the Crown has to prove is
14 the existence of relationship. The harm is in the
15 relationship itself because of where it leads.
16 And where it leads is not mere speculation.
17 Accordingly it does not require prove that the
18 polygamy or conjugal union in question involved a
19 child or occurred the in the context of dependents
20 exploitation abuse of authority a gross imbalance
21 of power or undue influence. Although the union
22 may have been made with consent the state has an
23 interest in prohibiting an agreement that leads to
24 these things just as it can make illegal other
25 agreements that likely lead to illegal
26 consequences and with that it's not necessary will
27 turn to it but page 10 of the closing submission
28 we refer to the quotation of Canadian court as to
29 why conspiracy is prohibited and the Supreme Court
30 of Canada in the United States versus die narcotic
31 said [phonetic] as a result it is obvious that the
32 reason for punishing conspiracy before any steps
33 taken towards attaining the object and purpose of
34 the agreement is to prevent the unlawful object
35 and purpose from being obtained and therefore to
36 prevent this serious harm from occurring. Not
37 suggesting that laws of conspiracy apply to
38 polygamy but I am saying that that's the basic
39 reason for -- that is a reason for supporting a
40 prohibition of polygamy because it leads the stop
41 the consequences before they occur.
42 Taking into account the 5,000 pages of the
43 Brandeis brief materials and the evidence provided
44 by all of the witnesses it is pretty safe bet that
45 the Court has received more information on
46 polygamy than any court in history anywhere. Few
47 witnesses gave more damning evidence than
33

1 professor he obtained the harms of polygamy are
2 the inevitable consequence of its practice. The
3 common law has FON HUPs of years denounced
4 polygamy because of its harmful effects he said.
5 He deposed that polygamy usually caused or came
6 within incest, adultery, exploitation, coercion of
7 young women. Jealousy and rivalry among wives
8 dispassion of family wealth. Inequality treatment
9 of household members disentear tans of
10 disfavoureded children for starters.
11 Those are all matter that interest the state.
12 Nicholas Bala referred to a cross cultural
13 study of numerous STOETs there was not much good
14 to say about polygamy at the end of the day. The
15 simple truth is that polygamy places enormous
16 burdens on the state when it comes to issues of
17 divorce, separation, child support and Social
18 Services and equality rights. It institutional
19 lieses inequality of women impact on France when
20 several HUN thousand polygamists ready entered the
21 counsel interest has been real women agrees with
22 submissions of the AGs of B.C. and Canada and
23 submits that the evidence as set set forth fully
24 supports the pressing and substantial tests of the
25 oaks case.
26 The law punishes polygamy even though the
27 relationship may have been entered into with
28 consent so the harms are not inflicted on society.
29 The evils of Bountiful include increst due was
30 marriages lost boys and all that. Old men
31 demanding adolescent girls parents and children
32 facing the terrible choice of a child bride or
33 plural wife, the loneliness of children growing up
34 among 40 sibling rivals add to this list genetic
35 disorders and welfare fraud. These all the
36 predictable sequences of the institution of
37 polygamy and the answer to all this is not to
38 legalize it and see what happens. This is a grim
39 picture that emerges from Bountiful.
40 The Amicus argues that section 293 has an
41 unconstitutional purpose. He submits that the ban
42 was intended to defend a Christian view of proper
43 family life. But again Dr. Jon WIT noted under
44 the third -- that after the third century polygamy
45 came to be universally condemned by both western
46 Theo low generals and you are jurists and
47 attendance crimes it visited on the polygamous
34

1 household the fact that these views did not
2 collide with Christianity does not mean that the
3 motivation foreign acting the section 293 was
4 religious. If the only evidence before the Court
5 came from Bountiful British Columbia then the town
6 might be dismissed as a cult but that is not what
7 we have and that's not what's been presented. The
8 opinions of scholars and a cross section of
9 academic disciplines including anthropology, law,
10 history, social science, bioethics provide a solid
11 basis and economics of course for concluding that
12 Bountiful is a predictable result of a polygamous
13 society. To the extent that section 292 deters
14 others from entering polygamous or entering Canada
15 serves a vital purpose and should be upheld.
16 Now I want to conclude by saying something
17 about real women of Canada. It is a non-profit
18 society it's totally independent and receives no
19 government funding. It it's dead can indicated to
20 promoting equality for all women. It's supports
21 policies that provide equal opportunity in
22 education employment and retirement and they view
23 the families as the most important unit in
24 Canadian society. Polygamy in their view is a
25 threat to all of their most CHER reddished values
26 and that's yes. They have chosen to intervene this
27 had this reference. Thank you
28 THE COURT: Thank you very much Mr. Baker.
29 THE COURT: West Coast Leaf. Do you want to get
30 started.
31 MS. WINTERINGHAM: We're in your hands we can certainly
32 get started we will be under our two hour estimate
33 so it's.
34 THE COURT: Let's start and go to a point where you
35 like to break.
36 MS. WINTERINGHAM: Chief Justice we will be referring
37 to the written closing submission and it says
38 closing statement of West Coast Leaf amended March
39 7th, 2011. We will also be referring to some of
40 the cases in the joint book of authorities that
41 was prepared by the AG of Canada. Also you will
42 need before you the West Coast Leaf's supplemental
43 book of authorities. And we also refer to one
44 case in the supplement book of authorities that
45 was prepared and I believe provided by disk but
46 we'll get to that probably later on this
47 afternoon.
35

1 THE COURT: Okay.
2 MS. WINTERINGHAM: Now each of us will be addressing
3 the court throughout these closing submissions
4 Ms. Govern DER is going to be addressing section
5 2A section 7 and section 15.
6 Ms. Gaffar will be addressing section 1 and
7 the role that international law plays in
8 determining the constitutionality of section 293.
9 She will also focus somewhat on some of the
10 evidence of harm that has BP elicited during the
11 course of this proceeding although again we're
12 going to take great care not to duplicate what you
13 have already heard in these submissions.
14 I will begin with the concept of reading down
15 and I start by saying this. Section 293 # is
16 constitutionally valid when it is read down to
17 apply to exploitative polygamy now what does that
18 mean. That is the position that West Coast Leaf
19 has taken in this reference what ultimate at a
20 tempt to do as we go through the written
21 submission I will try to respond to the written
22 submission proposed by the Amicus and in
23 particular I will LOOB at paragraphs 177 to 188 of
24 that written submission where my friend addresses
25 West Coast Leaf's submission of 293 # I will start
26 by saying this.
27 The Amicus at paragraph 200 and you need not
28 turn to that sets out that there are three
29 basically three interpretations that have been
30 offered by the defenders of section 293. He
31 describes the interpretation offered by the AG of
32 British Columbia, the AG of Canada and West Coast
33 Leaf's interpretation.
34 He says at paragraph 181 that reading down
35 requires that the text of the law can actually
36 bear the narrow interpretation. Now, this
37 submission is premised on the proposition that
38 before the court can engage in reading down
39 legislation it must find some grammatical signal
40 or language in the text of the law itself which
41 points to that narrower interpretation.
42 That premise being that the presumed intention
43 is based on language is with all due respect
44 incorrect and not the way reading down works. The
45 principle of reading down is based on the concept
46 that the Court must presume that the drafters of
47 the legislation intended to draft a law that
36

1 complies with the constitution. And even though
2 section 293 existed before the PROK CLA MAGS of
3 the constitution in 1982 we get to assume and the
4 Court gets to assume that Parliament chose in 1982
5 to leave section 293 intact. So reading down in
6 my respectful submission does not require that the
7 legislation have a specific word or a sign or a
8 grammatical context that would ground the narrow
9 interpretation so with that preliminary statement
10 in mind I am going to turn to the written
11 submission and I am at paragraph -- or sorry page
12 2.
13 THE COURT: Thank you I have it.
14 MS. WINTERINGHAM: And in order to go through the next
15 few pages I probably am going to kill your
16 viewership in terms of what is watching this
17 because I'm going to take you some of the cases on
18 reading down but I will start by identifying three
19 interrelated concepts that we had need to deal
20 with.
21 And that is that reading down is a tool of
22 constitutional interpretation, it relies on the
23 principle of constitutionality for its operation
24 and three it is misleading to characterize it as a
25 remedy. No breach need be found before you can
26 can engage in the exercise of reading down and
27 Ms. Trask for the BCTF summarized that proposition
28 very neatly in the introductory comments she made.
29 This is an interpretation c exercise in
30 determining how to deal with and how apply section
31 293 so west West Coast Leaf says section 293
32 should be read town to apply in had exploitative
33 circumstances pursuant to this principle of
34 constitutionality the position of
35 constitutionality is a rule of construction that
36 applies to all constitutional analysis the
37 principle of constitutionality is the proposition
38 that if legislation is amenable to interpretations
39 a court should choose to as constitutional because
40 the Courts must presume that Parliament expended
41 to enact constitutional legislation and strive
42 where possible to give effect to this intention I
43 will take you to the west coast mills case which
44 is the West Coast Leaf tab 12 now mills you recall
45 is the case are where we're dealing with the
46 constitutionality of section 278 of the Criminal
47 Code being the production of counselling records
37

1 in possession of third parties and you may recall
2 that Parliament's answer to the O'Connor decision
3 reversed went with the minority reasons in terms
4 of how they drafted the legislation.
5 Much of the commentary which is Justice
6 McLachlin and yak BU CHI writing addresses whether
7 it was constitutional for the Parliament to go off
8 and go with the reasons of the could none nor
9 decision and they were testing the section in
10 light of section 7 and 11D of the charter and if I
11 can have you turn please to paragraph 22 and again
12 this is Justice McLaughlin and yak BU CHI right
13 writing and at paragraph 22.
14 THE COURT: I have this.
15 MS. WINTERINGHAM: It says turning to the legislation
16 at I object in this appeal we find it
17 constitutional. It is undisputed there are
18 several important respects in which Bill C 46
19 differs from are regime set O you the in O con nor
20 however these differences are not fatal because
21 Bill C 4 had 66 provides sufficient protection for
22 all RRLT charter rights. There are admittedly
23 several provisions in the bill that are subject to
24 differs interpretations. However, in such
25 situations we will interpret the legislation in a
26 constitutional manner where possible and the
27 reference there is to slate communications by
28 doing -- by so doing we conclude that Bill C 46 is
29 a constitutional response to the problem of
30 production of records of complainants or witnesses
31 in sexual assault proceeding.
32 The next quote that we have actually reference
33 referenced in our written submission can be found
34 at paragraph 56 and again these concepts are
35 important when determining how to -- how to assess
36 the constitutionalty of provision and after PRAT
37 46 a posture of respect towards Parliament was
38 endorsed by this Court in slate communications
39 where we LELD if legislation amenable to two
40 interruptings a court should choose the
41 interpretation that upholds the legislation as
42 constitutional. Thus Courts must presume that
43 Parliament intended to enact constitutional
44 legislation and strive where possible to give
45 effect to this intention.
46 And I am not going to read out paragraph 58
47 but I would also ask that you flag that particular
38

1 paragraph in looking at what the court's role is
2 in assessing the constitutionality of a particular
3 provision.
4 I am also briefly in the mills case going to
5 take you to the descent of then chief gist TUS la
6 MER and I do that only for this purpose. Chief
7 Justice la MER agrees with the majority of the
8 decision however he determined that when
9 counselling records were in the possession of
10 Crown counsel versus in the possession of a third
11 party then section 11D presumption of innocence
12 kicked in and that portion of the legislative
13 scheme dealing with production of records was not
14 constitutional but what he does at paragraph 15 is
15 really interesting because he says I turn last to
16 a consideration this is at paragraph 15 page 11 of
17 46 and at paragraph 15 Chief Justice la MER says I
18 turn last to a consideration of the appropriate
19 remedy under 52 (1 my finding of
20 unconstitutionalty is limited to provisions
21 afternoon otherwise complex scheme I believe that
22 a combination of reading down the sections and
23 reading in new language is the most appropriate
24 way vindicate the Charter of Rights at play while
25 refraining from are inSTRIEGS beyond what is
26 necessary. So the Chief Justice there in order to
27 preSEFB the legislative scheme was prepared to do
28 a combination of reading in and reading down.
29 I then turn to paragraph 6 of the written
30 submission and a reference was made by my learned
31 friend for the KRL to the Bedford case and the
32 Bedford case is included only as a nice summary of
33 the principles engageded when the court is looking
34 at constitutional or charter analysis. So we have
35 have youed a quote there from justice ham he will
36 with respect to how does the court approach
37 charter analysis and again I am not going to read
38 that out this its entirety expect refer you
39 briefly to the quote to the Canadian foundation
40 for children and the law versus Canada and I'm
41 actually going to turn to that case and that's at
42 tab 10 of the joint book of authorities so it's
43 not the West Coast Leaf book it's the joint book.
44 Now, this is the case that was assessing the
45 corrective measures defence section 43 that
46 permitted parents teachers or guardians to use
47 corrective measures when they were disciplining
39

1 their children.
2 And that section if you look at the section
3 set out at paragraph 1 of the decision you can see
4 by reviewing that particular section that it's
5 fairly general it says every school teacher parent
6 or person standing in the place of a parent has
7 justified in using force et cetera. So it's a
8 general provision. But what does Madam Justice
9 McLachlin do with with that particular SXROIGS she
10 engages I would respectfully submit in an exercise
11 described by Ms. Trask in her submission where she
12 is looking at how do we interpret -- how do we
13 judicially interpret a section when we have a lot
14 of evidence before us you will recall PR this case
15 that there was much expert evidence there was
16 evidence on international law in dealing with the
17 discipline of children and Madam Justice McLachlin
18 in does he remembering the constitutingty of
19 section 43 goes through and reads in but doesn't
20 say she is doing that but and interpret the way
21 she section should apply.
22 And if I can -- there's actually three sets of
23 reasons but if I can have you take a look, please,
24 at paragraph 40 and 43 and that's my page numbers
25 are different than yours but it's paragraph 40 and
26 43.
27 THE COURT: Thank you.
28 MS. WINTERINGHAM: What Madam Justice McLachlin does at
29 paragraph 433 she refers to justice arbor's
30 descent and she says this:
31 "My colleague arbor J by contrast takes the
32 view that section 43 is unSTOOSHLly vague a
33 point of view I'll also expressed by another.
34 First that a the foregoing analysis amounts
35 to an I am Per missable reading down of
36 section 43. This contention is answered by
37 the evidence in this case which established a
38 solid core of meaning for section 43."
39 She DWS on it so I construe terms like reasonable
40 under the circumstances by evidence to evidence
41 and argument is a common and accepted function of
42 courts interpreting the criminal law. To
43 interpret reasonable in light of the evidence is
44 not judicial amendment but judicial interpretation
45 it is common practice given the number of criminal
46 offences conditioned by the term reasonable. If
47 it is not the function of the appellant courts to
40

1 rain in overly it is equal will I their function
2 to define the scope of criminal defences and ma
3 Madam Justice McLachlin is really um is rised at
4 paragraph 40 and what we see at paragraph 40 is
5 what Madam Justice McLachlin actually does to
6 uphold the constitutionality of section 43 she and
7 I'll go through this verify briefly but she
8 changes the age, she says another under 2 and
9 probably not people over 1. She based on the
10 evidence you can assume that teachers aren't going
11 to be alloyed to UCH as much corrective force as
12 parents so she is reading in or mayoring the
13 interpretation of section 43 as she says was her
14 judicial obligation and Chief Justice before I
15 move on I'm going to ask that we take the break at
16 this point but I stop by saying this. The Court
17 must in my respectful submission apply an
18 interpretation that is constitutional and the
19 proposed interpretation here is one that is so.
20 And I would ask that if we could stand down
21 now for the lunch break
22 THE COURT: Thank you. 2 o'clock.
23
24 (NOON RECESS)
25
26
27 THE CLERK: Order in court.
28 MS. WINTERINGHAM: Chief Justice I'm at paragraph # of
29 the written submission and I'm going to start
30 there.
31 THE COURT: Thank you.
32 MS. WINTERINGHAM: Now the principle of
33 constitutionality is equally applicable in the
34 charter and federalism context.
35 Many cases concerning the division of powers
36 between governments the principle can be used to
37 support the upholding of the law that has been
38 enacted by one level of government in the charter
39 context this principle does not necessarily accord
40 the government with greater leeway to legislate
41 WRAER the practice of reading down legislation in
42 accordance with the preliminary of
43 constitutionality may be used to uphold individual
44 rights against the state.
45 Now that's a quote that comes from the HOG
46 text and I'm going to take you to the Amicus's
47 quote in just a moment.
41

1 In other words, principle of constitutionality
2 in the charter context supports two key
3 constitutional goals an appropriate judicial
4 divide between the judicial and legislative
5 branches the upholding of individual rights in
6 determining the appropriate remedy or interpret
7 tiff tool and I would ask you to underline
8 interpretive tool the Supreme Court of Canada in
9 Schachter noted that respect for the role of the
10 legislature and the purposes of the charter of
11 twine guiding principles. So those are the
12 principles the Court need to consider when
13 examining a piece of legislation for its
14 consistency with the charter.
15 Now, I'll ask you please to go to paragraph
16 180 of my learned friend for the Amicus's
17 submission
18 THE COURT: Volume 1.
19 MS. WINTERINGHAM: Yes, it is in volume 1. So it's at
20 page 70 paragraph 1 # 80.
21 THE COURT: Thank you.
22 MS. WINTERINGHAM: This is the portion of my learned
23 friend's argument that deals with the West Coast
24 Leaf position.
25 THE COURT: Right.
26 MS. WINTERINGHAM: PRAFR 180 you will see there's a
27 quote from the text of Mr. Peter HOG and it says
28 this reading down is the appropriate remedy when a
29 statute will bear two interpretations one of which
30 would offend the charter of rights and the other
31 of which would not. Many that case a court will
32 hold that the latter interpretation which is the
33 normally the narrower once hence reading down is
34 the correct one. In a statute is read down to
35 avoid a broach of the charter there is no holding
36 of invalidity. The vindication of the Soli by
37 interpretation judicial restraint because it
38 minimizing the impact of the successful charger it
39 attack on a law.
40 So the policy of restraint that reflects
41 judicial respect for parliamentary SU prepremise
42 as I and the appropriate division of powers in
43 certain circumstances reading down is the
44 constitutional principle that constitutes the
45 least intrusion into the role of the legislature
46 and it is only in these cases reading down should
47 be applied and I am going to take you to paragraph
42

1 56 of the baron case which is at tab 1 of the West
2 Coast Leaf book of authorities. Tab 1, paragraph
3 56. And this is Justice Sopinka writing.
4 Paragraph 56 and it's the middle of that paragraph
5 THE COURT: Right.
6 MS. WINTERINGHAM: It starts with the sentence reading
7 down by amend aing the clear intent of a statutory
8 provision may be appropriate in some cases. The
9 decision to do so requires a determination that
10 this remedy will constitute the lesser intrusion
11 into the role of the legislator consistent with
12 upholding the values and objectives of the
13 charter.
14 And that's what West Coast Leaf is asking the
15 court to do here.
16 Where -- this is paragraph 11 of the written
17 proof paragraph. Where seizure requirements are
18 met the Court's legislative interpretation may
19 deviate from the plain meaning or clear intent of
20 the legislation and we've cited a quote there from
21 the Ontario versus Canadian Pacific case and it's
22 Chief Justice la MER against in dissent where this
23 portion of the quote comes from but this is simply
24 a decision on the appropriate analysis and charter
25 interpretation. This is a case that deals with
26 the breadth of a particular pollution law.
27 And what the Chief Justice say then Chief
28 Justice the presumption of constitutionality can
29 sometimes serve to reWUT the presumption that the
30 legislature intended that effect be given to the
31 plain meaning of its enact am as I stated in
32 Schachter respect for the role of legislature and
33 the purposes of the charter are the twine guides
34 principles in crafting a remedy under section 52
35 in my view they also provide guidance when
36 interpreting legislation in the presumption of
37 STUTHSty in this latter context the former
38 principle imposes a requirement that any
39 alternative interpretation adopted in preference
40 to the plain meaning must itself be one that is
41 reasonable supported by the terms of the
42 legislation as I observed if Schachter where the
43 choice of means is unequivocal through different
44 means would constitute an unwarranted intrusion
45 into the legislative domain. Those merely
46 invoking the presumption ask not give a court
47 pleat freedom to depart from the terms of the
43

1 statute employed by the legislature. Rather the
2 presumption is simply a factor on some occasions
3 tips the SKALTS in favour over another
4 construction that an in the absence of this
5 consideration would appear to be the most strongly
6 supported by the rules of statutory construction.
7 If the terms of the legislation are so
8 unequivocal no respect for legislative intent
9 requires the court adopt this meeting even P it
10 means the legislation will be struck down as
11 constitutional.
12 THE COURT: Isn't that what your friend was getting at
13 there's no trigger in here that makes it
14 equivocal?
15 MS. WINTERINGHAM: That is but it's our respectful
16 submission that there is and at the outset I
17 believe it's paragraph 1 # 7 of the Amicus's
18 submission he proposes the three interpretations
19 that have been proposed by the AGBC A COMB Canada
20 and West Coast Leaf so there is a question as to
21 what is the appropriate interpretation of section
22 # 293 and what is its appropriate application more
23 importantly.
24 Now, reading down cannot amount to judicial
25 rewriting and I'm going to take you to the Haywood
26 case because that case my friends my learned
27 friend spends a bit of time on and Haywood is
28 found in the joint book of authorities and it's
29 tab 26
30 THE COURT: All right.
31 MS. WINTERINGHAM: Now, this is section 179 (1) (b) of
32 the Criminal Code and it was a section dealing
33 with vagrancy and in according to this particular
34 provision of the Criminal Code it captured anyone
35 who had ever been convicted of a sexual related
36 offence at any time and it had a broad
37 geographical ambit so it included public places
38 where children may not necessarily be present and
39 it also didn't have any provision that required
40 notice be given to various offenders or convicts
41 who had been found guilty of the enumerated
42 offences under the section.
43 And here the section and if we go to paragraph
44 71 the court had addressed the problems with with
45 the geographical ambit of the section had
46 addressed concerns with respect to who would apply
47 to addressed concerns with respect to that the
44

1 length or duration of who this provision could
2 apply to so even somebody who may have gone
3 through various rehabilitative measures was still
4 captured by this section so at paragraph 71
5 justice Cory for the majority states and this is
6 the middle of paragraph 71:
7 "This changes which would be required to make
8 section 1 # 71 constitutional would not
9 constitute reading down or reading in rather
10 they would ament it judicial rewriting of the
11 legislation."
12 And he goes on to paragraph 7 2 in the middle of
13 that paragraph where in he he cites reading down
14 will only be warranted where one the legislative
15 object and purpose is obvious and reading in or
16 reading down would striking down the legislation,
17 two, the choice of means used by the legislature
18 is not so unequivocal reading in or reading down
19 intrude into the legislative sphere and reading in
20 or reading down would not impact on PUTHtry
21 decisions to such an extent that it would change
22 the nature of the legislation at issue. And so in
23 this case in Haywood they decided that it wasn't
24 appropriate to read down the legislation because
25 of the breadth of the section before the Court.
26 And I am now at paragraph 14 in response to
27 the Haywood case, paragraph 14 of the written
28 submission
29 THE COURT: M'mm-hmm.
30 MS. WINTERINGHAM: Submits that section 293 is
31 reasonably open to the interpretation that it
32 criminalizes PRIL polygamy insofar as the practice
33 of polygamy exploits women and DPIRLS. This
34 interpretation finds the appropriate balance
35 between deference to Parliament and the fulfil the
36 read down 293 protects individual rights rather
37 than overriding them by limiting its potential
38 infringement of the religious rights of
39 polygamists at the same time as fulfilling the
40 equality rights of women and girls in ex-employ
41 TAF polygamous relationships. When section 293 is
42 read down we say it does not capture polyamoury as
43 defined in paragraphs 13 and 14 of the opening
44 statement on breach by the Canadian polyamoury
45 association.
46 Rather, CPAA defines polyamoury as relations
47 based on a practice of equality and self
45

1 realization. The law does not prohibit one from
2 having multiple spouses per se rather it prohibits
3 the exploitative practice of polygamyfull in this
4 case it's respectfully submitted all of the
5 requirements for reading down have been met
6 pursuant to the Haywood test and the three
7 elements of Haywood are set out at paragraph 16.
8 In interpreting section 293 the Court must be
9 guided by the principle of constitutionality in
10 order to preserve the proper division of powers
11 and respect for the purpose of the chart, the.
12 THE COURT: Must select an interpretation that is
13 constitutionally valid where such an
14 interpretation as here is reasonably open to the
15 court. .
16 Now, I am going to turn and reply directly to
17 three things made in the Amicus's submission and
18 if I could have you turn.
19 THE COURT: I must say I'm having trouble with 1B the
20 choice of means used by the legislature is not so
21 unequivocal. I mean Canada says it's unequivocal
22 and the Amicus says it's unequivocal. They're on
23 either side of that argument but they're both
24 unanimous there. The Attorney General of British
25 Columbia suggests there is some eye equivocation
26 and they have some discussions in their
27 interpretation but what are are you saying is
28 equivocal in the wording of 2 # # # that gave you
29 the entray into reading down.
30 MS. WINTERINGHAM: This had is actually exactly what
31 was before Madam Justice McLachlin in the
32 children's function.
33 THE COURT: She had the word reasonable.
34 MS. WINTERINGHAM: She was dealing with the word
35 reasonable you're dealing with the Word polygamy.
36 THE COURT: That I was dealing with the Word reasonable
37 polygamy I might have a better opportunity to do
38 what you're ininviting me to do.
39 MS. WINTERINGHAM: That's right. And.
40 THE COURT: I'm dealing with the phrase your friend
41 would stress this any form of polygamy.
42 MS. WINTERINGHAM: What we're saying many terms of how
43 this this section applies you don't need to read
44 in. You don't need to read any words in. How do
45 you apply it. Who does this section apply to and
46 we say based on all of the evidence before you
47 expert and lay witnesses and Chief Justice
46

1 McLaughlin said you get to do this based on all of
2 that evidence you can find that an exploitive
3 polygamy is constitutionally sound and captured by
4 293 # and it doesn't require you to find some word
5 or text in the section itself that permits you to
6 say this section only applies exploitive polygamy.
7 So it's exercise of judicial interpretation and
8 it's confused a little bit I would respectfully
9 say in some of the cases that talk about reading
10 down and some cases some judges refer to it as a
11 remedy. We know from Peter HOG's text it's not a
12 remedy and we know from what Madam Justice
13 McLachlin does in the child foundation case she
14 simply is interpreting a section in a
15 constitutional framework and so leading into well
16 where is the ambiguity. What is equivocal in
17 section 293 it's my respectful submission you look
18 at the evidence, expert and otherwise and you can
19 find that if you have constitutional concerns
20 about the section as drafted well how do you make
21 sure the section stands where it should stand and
22 we say it should stand when you're dealing with
23 evidence of exploitation.
24 THE COURT: Okay.
25 MS. WINTERINGHAM: And perhaps I'll just say one more
26 thing about that. This sort of exercise is
27 nothing new. Judges deal with this every day.
28 This this is a little bit unusual but in terms of
29 the interpretation of the law it's something that
30 has to be dealt with every day and parts of my
31 learned's friend submission he talks about how --
32 he writes there's not a -- there's not a law that
33 I'm aware of that violates the charter more than
34 this one.
35 THE COURT: Well, ignoring that rhetoric, yes.
36 MS. WINTERINGHAM: Okay. And I won't touch it except
37 to say with respect to the judicial exercise.
38 THE COURT: Where is it it put a lot of people in this
39 room. Win within we're all out of work, aren't
40 we. But we can think of vague ran as I.
41 Obscenity. The impaired driving laws that are now
42 engaining much attention. So polygamy what is it.
43 The cores can interpret it we say. It doesn't
44 need to be struck.
45 So I'm going to turn to a couple of the
46 paragraphs in my learned friend's submission and
47 this this is paragraph -- it starts with 181.
47

1 THE COURT: Thank you.
2 MS. WINTERINGHAM: And this is where it is suggesteded
3 that you have to look to the text of the law
4 that's the first line of 181 before you can
5 actually determine whether or not the section can
6 bear a narrower interpretation. And they move to
7 three particular points in order to support that
8 proposition. The first point is found at
9 paragraph 182 and he refers to the fact that
10 section 2293 criminalizes everyone. And my reply
11 point to that is SCHL that ignores what we're
12 asking you to do. We're asking the court to apply
13 this not to everyone but to exploitative polygamy.
14 We also say in the introductory paragraphs you
15 don't apply to this the person being exploited the
16 section is being applied to the exploiter. The
17 next point is found at page 1873 P of my friend's
18 submission and here he focuses on the text
19 consent. So polygamy requiring a consent --
20 criminalizing consenting to polygamy.
21 And again in response to that submission we
22 say this, you can't rely Soli on the words of the
23 section and relying Soli on the words of the
24 section is not a bar to the use of reading down if
25 there's not some magic word that exists in the
26 text. So that submission again in my respectful
27 submission you you ignores what we're asking the
28 court to could which is read it down.
29 Finally with respect to the submission that's
30 found at paragraph 184 with my learned friend
31 deals with section 153 which is the exploitation
32 section where there's factors enumerated in the
33 sex describing what may constitute exploitation as
34 it relates to section 153 and my friend says
35 there's no such language in 293 so section 15 P
36 doesn't help West Coast Leaf's position.
37 If my respectful submission that's not what we
38 are attempting to do it in describing
39 exploitation. I'm going to move you if I can to
40 page 13 of our closing submission. The written
41 brief. And address the concept of exploitation at
42 it appears throughout the criminal law and at
43 paragraph 31 we say this. The practice of
44 polygamy violates women's fundamental rights to
45 autonomy and equality and as practice in
46 communities like Bountiful is directly connected
47 with the abuse and exploitation of women
48

1 determining whether polygamous conduct constitutes
2 ex-employ tense and criminal depends on the
3 assessment the totalty of the circumstances
4 presented. This assessment is FIEDed by two
5 fundamental notions of criminal law
6 interpretation. Much first, the consideration of
7 the under lying purpose of a particular criminal
8 law and two, recognition of the familiarityty of
9 the concept of exploitation in criminal law
10 jurisprudence will practising law so we included a
11 discussion of exploitation because it's a concept
12 that is very familiar in criminal law. We see it
13 in section 153 we see it in the obscenity section
14 and obscenity decisions and we also see it in some
15 of the prostitution related offences.
16 The purpose of a particular criminal law is
17 relevant when considering the concept of
18 exploitative polygamy. Even in the
19 non-constitutional context when addressing
20 interpretation of the Criminal Code provisions the
21 court may consider the underlying purpose of the
22 criminal law in a general sense and I am not going
23 to read out these proofs of the submission but
24 these are Madam Justice Did you bay when she is
25 looking at what is purpose of -- she was dealing
26 with KROPGS of public officials what is the
27 purpose of that section when we are trying to
28 determine what the section means and what the
29 elements of the offence are.
30 Moving also to the discussion in had Butler
31 Justice Sopinka paragraph 34 Justice Sopinka's
32 comments in dealt with this far more he will
33 KWEPTly than I am so I am not going to repeat had
34 HES I submission but we address the purpose of the
35 criminal law and how its purpose is important in
36 interpreting the legislation and at paragraph 36
37 we say the harm analysis is further elaborated
38 upon in R v. la bay only behaviour that violates
39 fundamental values such as autonomy, equality,
40 liberty and human dignity as reflected in the
41 constitution are similar fundamental law will
42 amount to harm that incurs criminal sanction and
43 there's a quote there from la bay that I won't
44 read out that describes the nature of harm and the
45 role of criminal law in preventing such harm. At
46 paragraph 37 we say this, the underlying purpose
47 of a particular criminal law is relevant to its
49

1 interpretation. Prohibition of the practice of
2 polygamy is analogous to prohibitions on
3 obscenity. Both concern activities that are not
4 inherently harmful but harmful when practised in
5 an exploitative manner. Both rooted in Victorian
6 moralty both have evolved into state regulation of
7 harmful conduct. Both activities that the
8 pornography and is the practice of having multiple
9 simultaneous spouses generally speaking tape a
10 spectrum SPABing from healthy human sexuality to
11 exploitative power relations and the criminal law
12 plays an a forms of that activity.
13 Section be 293 serves the public interest by
14 protecting individuals from real and probable harm
15 society as a whole has an interest in condemning
16 such harmful consequences that flow from polygamy
17 as well as maintaining a law has at its heart when
18 women are valued in society when the criminal law
19 fails to protect their women are devolumed in
20 fails to protect their rights to equality and
21 safety such infringement come preMIEZ the human
22 dignity. And Canadian women and girls more JEP
23 ly. The point there Chief Justice is that in
24 interpreting section 293 we must consider the
25 principles as espoused in the charter including
26 the equality rights of women and girls.
27 The second notion that we say is relevant to
28 an assessment of whether polygamous conduct is
29 exploitative and hence criminal requires a
30 description of the meaning of exploitation and
31 it's an incorporation into criminal law JUR prunes
32 used as an express element in 153 in section 163
33 although it's not an explicit element it appears
34 in THT case law concerning section 212 living on
35 the avails of prostitution. The purpose again of
36 including these concepts at this point of the
37 brief is simply to remind us all THO ex-employ
38 TIGS isn't anything new to the criminal law. It's
39 something that can be explicit or as in the living
40 on the avails cases it's been read in sorry WOEBT
41 read in. It has been interpreted judicially as a
42 requirement to determine whether or not the
43 relationship is pa an are an as I particular and
44 is that's how you determine whether or not someone
45 is living on the avails of prostitution.
46 THE COURT: To we have that here.
47 MS. WINTERINGHAM: It's section 212 and actually my
50

1 learned friend is reminding me we photo into theed
2 it at footnote 57.
3 THE COURT: Okay.
4 MS. WINTERINGHAM: So this is at paragraph 444 had of
5 our brief and we're dealing with section 212 and
6 we say this. Although it's not expressly written
7 into the section the trier of fact is nonetheless
8 required to consider exploitation in determining
9 whether the charged relationship is paraas I
10 particular and thus criminal. In BREE low. The
11 Ontario Court of Appeal dealt with the issue as to
12 what extent a person may derive benefits from
13 living with a prostitute before that person arbor
14 for the Court adopt as an SRNL of the offence the
15 requirement of a pa as I particular relationship
16 and stated the relationship is paraas I particular
17 when there's an element of exploitation present
18 what they were concerned about is the grandmother
19 who lives in the house with a woman who is working
20 on the streets and whether a grandmother can be
21 captured by the section so they read into this
22 agreement and again.
23 THE COURT: They interpret they ERPT it the phrase
24 lives wholly or in part on the avails.
25 MS. WINTERINGHAM: That's perfect. So that's what.
26 THE COURT: I am trying to interpret the phrase any
27 form of polygamy.
28 MS. WINTERINGHAM: Are you saying your task is harder.
29 I think it may be, yes. It's not an enviable task
30 but this is one way to assist in determining what
31 polygamy is, when it should be criminal and when
32 the prohibition should apply.
33 THE COURT: So you know my difficult and perhaps TRIG
34 arer is not the right word but hook might be
35 another word what is reasonable requires me to
36 interpret something what does living on the avails
37 meaning lives that requires me to interpret
38 something. I'm trying to see where I'm required
39 to interpret or have any real ambit to interpret
40 any form of polygamy.
41 MS. WINTERINGHAM: Now the la bay case actually has
42 some interesting language with respect to that
43 that's the indecency case.
44 THE COURT: That was the common bawdyhouse.
45 MS. WINTERINGHAM: That's right so at the very
46 beginning it's Madam Justice McLachlin again and I
47 think it's paragraph one where is she says and I
51

1 will actually take us to that. Tab 29 of the
2 joint book of authorities. And it's added
3 paragraph # 2. And it is Chief Justice McLaughlin
4 writing for the court and she says defining inden
5 notoriously difficult enterprise. Perhaps we can
6 remove indecency there and put polygamy and she
7 goes on to say the Criminal Code offers no
8 assistance leaving the task to judges. And she
9 says the test developed by the cases has evolved
10 from one base largely on subjective considerations
11 to one FOOIing the need for objective criteria
12 based on harm and then she goes on to tell us what
13 inner had view indecency means.
14 And again it's not an easy task but it is a
15 task that in our respectful submission can can be
16 undertaken here in determining how to apply
17 section 293.
18 We have included in the written brief a list
19 of factors the Court can consider. We're
20 suggesting that exploitative polygamy is looked at
21 on a case-by-case basis I'm not going to take you
22 through the list it's in the written brief but
23 this is how we say the court can be inform as to
24 whether or not a particular polygamous
25 relationship is exploitative and hence criminal.
26 So my concluding comments before I pass the
27 podium over are simply these. Our approach to
28 reading down is nothing new, novel or even
29 original. It's available to do it in the cases
30 and we respectfully submit there is been three
31 alternative interpretations here and our
32 interpretation is one that would protect the
33 quality rights of women and girls.
34 And again going back to Madam Justice
35 McLachlin's comments in the child foundation case,
36 here the record is filled with evidence from
37 expert and lay people of the harms connected to
38 polygamy, Parliament in enacting the section back
39 in 1890 and leaving it intact in 1982 must have
40 intended the purpose of the law to prevent the
41 harms and the evidence of harms that have been
42 described in this proceeding.
43 I'll end with two brief comments. The Amicus
44 has submitted there are are other offences in the
45 Criminal Code available to deal with the real
46 harms of polygamy but in my respectful submission
47 that is not the answer. Parliament chose to
52

1 criminalize polygamy. And Parliament would have
2 known of the other provisions in the code
3 available with respect to some of the offences so
4 it it's my respectful submission that polygamy on
5 its own still stands with the other offences of
6 the Criminal Code.
7 My final point is this, the Amicus suggests
8 well, monogamy is bad too and there's harm
9 certainly associated with monogamy. Well, if
10 Parliament decides to do something with monogamy
11 ask criminalize monogamy we'll deal with that
12 issue at that time. That's not the question for
13 you in this reference
14 THE COURT: Good.
15 MS. WINTERINGHAM: Thank you Chief Justice.
16 THE COURT: Thank you.
17 MS. GOVENDER: I will be dealing with namely those
18 pages dealing with the breaches of charter rights.
19 West Coast Leaf submits that section 293 does not
20 breach the charter provisions in particular does
21 not breach sections 2, 7 or 15. The state has an
22 obligation to uphold charter equality one of the
23 fundamental values of Canadian society. To that
24 end section 293 provides important protection for
25 the security and equality interests of women and
26 girls.
27 The overarching team of this portion of our
28 submissions is that charter rights cannot be used
29 to create a right to exploit other people. And,
30 in fact, makes a mockery of the intent to charter
31 auto use the rights to constitutionally protect
32 the ability of people to harm, exploit and
33 discriminate against other people. Human dignity
34 is an underlying value to all charter protections.
35 In the words of the Supreme Court of Canada in law
36 and this is at paragraph 78 of our closing I won't
37 take you there but human dignity is harmed when
38 individuals and groups are marginalalized and is
39 enhanced when laws recognize the full rights of
40 all individuals and groups within Canadian
41 society. West Coast Leaf submits that section
42 2933 fulfils rather than compromises this
43 constitutional mandate.
44 Finally by way of introductory comment West
45 Coast Leaf submits the evidence of harm is
46 relevant at any stage including the breach stages.
47 The legal basis for this this relevance I would
53

1 detail as I go through but suffice it to say for
2 now harm is relevant in order to show that the
3 practice of polygamy violates the equality and
4 security rights of women and girls and so support
5 the argument that section 293 protects our human
6 dignity. My colleague Ms. Gaffar will be dealing
7 with the evidence of harm in her submissions.
8 Turning then to paragraph 53 of O you are
9 closing which deals with section 2A of freedom of
10 religion. The protection for religious right as
11 found in section 2A does not go so far as to
12 protect all activity done in the name of religion.
13 West Coast Leaf submits section 2 itA is not
14 inDRINGed Friday section 2 # 3 because the scope
15 of freedom of religion is limited where the
16 impugned law prevents harmful activities that's
17 particularly so with respect to overwhelming body
18 of evidence of harm demonstrated in this
19 reference.
20 Section 2A protects one's freedom of religion
21 but it does not protect a right to exploit other
22 people. The essence of the concept of freedom of
23 religion which is taken from big M drug mart is
24 first of all the right to entertain such religious
25 beliefs as a person chooses the second the right
26 to declare religious believes openly without fear
27 of hindrance and thirdly the right to manifest
28 religious believes however not every legislative
29 effect on religious practices is offensive to the
30 guarantee provided by section 2A.
31 Evidence of the harms of polygamy is relevant
32 at this stage of the analysis. Freedom of
33 religion is not an absolute right while beliefs
34 are broadbly protected the manifestation of those
35 beliefs and the practice may be limited where it
36 comes into conflict with the exercise of other
37 rights. Again as described by Justice Dickson in
38 RV BIG M drug mart and quoting there from that
39 case the values under lie our political Phil SOF I
40 can traditions be free to hold and to manifest
41 whatever beliefs and N Ps his or her conscience
42 dictates providing only such manifest or their
43 parallel rights to hold and manifest opinions and
44 beliefs of their own.
45 West Coast Leaf says that the freedom to
46 practice religious polygamy is limited insofar as
47 the practice of polygamy limits the equality and
54

1 security rights of women. In his closing
2 submission my friend the Amicus frames the issue
3 under 2A as being whether freedom of religion
4 protects the rights of sincerely believing adults
5 to to remember a consensual conjugal union which
6 is at paragraph of his written closing.
7 With respect West Coast Leaf disagrees. The
8 issue we say under section 2A is whether freedom
9 of religion predicts the rights of adults to per
10 pitch wait exploitative polygamous marriage. The
11 answer must surely be that it does not. The
12 Amicus also suggests that the evidence of the
13 harms of polygamy are not relevant to this section
14 2A stage of the analysis and he relies on the mull
15 at that any decision to show any limitations to
16 the rights of freedom of right-hand lane must be
17 analysed at the section 1 stage in referring to ha
18 RMS to women at this stage says it's submission is
19 not incident consistent with the mull at that any
20 STIGS. In mull at that any much the court THALTed
21 occurs at section 1 rather than at section 2A.
22 SMIP specifically the Court says this CHORT has
23 frequently stateded paragraph 30 in mull at that
24 any. This Court has frequently stated and rightly
25 so that freedom of religion is not absolutely and
26 that it can conflict with other constitutional
27 rights. However, since the it test governing
28 limits on rights was developed in oaks the court
29 has never calleded into rights are reconciled
30 through the constitutional justification required
31 by section 1 of the charter.
32 The explicit balancing of section 2A rights of
33 polygamous houses against the exploitative against
34 section 15, 1 and quality and security rights of
35 women and girls may O occur it at the section 1
36 stage however before the court moves to section 1
37 it's respectfully submitted the Court must first
38 determine whether the I am PUPed conduct falls
39 within the purpose of after the accident 22A
40 particular will I in light of 28 of the charter
41 and second examine the genuine nest of religion
42 believe. It's SCHL cannot be that a practice of
43 exploitative polygamy and all of its demonstrated
44 harms to women and girl should be capable of
45 protection under the guise of religion. Your
46 Lordship pose add question to Mr. Jones for the
47 attorney of British Columbia about the qualitative
55

1 difference FEEN engaging this tall had he the 2A
2 stage verse we say there are three key differences
3 some of which have already been mentioned first of
4 all the change in onus TWEENS the two stages in
5 the analysis. Second of all the proportionality
6 analysis required upped section 1 that is not
7 required under section 2A. And thirdly and
8 perhaps most importantly the symbolic value of
9 finding that such harmful activity as polygamy and
10 activity that has been shown to infringe the
11 charter rights of women and girls is protected in
12 some money this is hes the clear message that
13 WHEFR's equality is overshadowed and under valued
14 in relation to men's MREEM of religion. A MENG
15 this KBT be dignity value upped lying all charter
16 protections.
17 Turning then to the purpose of section 2A.
18 Which is under paragraph -- starting at paragraph
19 5 # 5 of our submissions. We say there is a
20 disextension between drawn between the protection
21 afforded to religion beliefs and religion
22 practices the former being subject to more
23 extensive charter protection. In other words
24 practices are susceptible to a greater limitation
25 under the charter. The Ontario Court of Appeal a
26 summarized breadth of freedom of religion
27 protection contained in section # 2A as as
28 follows. And this is in the RV NS case. The
29 Court TLI says the Supreme Court of Canada JUR
30 prunes takes a broad and expansive approach to
31 religion freedoms. The protection of afforded O
32 religion freedom breaches reaches both religious
33 that is motivated or manifest those beliefs the
34 protection of affording religious belief is can
35 canbly broader than the protection and they cite
36 Trinity western for that proposition MOORM:
37 "This is not to say that RBLG practices have
38 no charter practice As the Amicus implies
39 about West Coast Leaf's arguments at
40 paragraph 232 of his closing. Rear rather
41 this quote illustrates that the point of
42 practices to greater scrutiny that beliefs in
43 the charter context and the scope of 2A is
44 considerably WROODer when applied to beliefs
45 rather than practices this is KORND in the BR
46 case of the CCRC submissions that Mr. Olthuis
47 took you to yesterday. BR also stand force
56

1 the proposition that the freedom to act upon
2 religious believes is anymore than the
3 freedom to believe particularly when the
4 activity in question threatens the
5 psychological or physical well-being of
6 others I don't mean to take you there but the
7 BR case at 226. Well the AGBC had stated in
8 their argument that practices and beliefs are
9 equally protected and cites big M for this BR
10 and NTS postdate big M and therefore develop
11 the less nuanced statement in big. Many.
12 In the context of the greater destitute any
13 the contained in section 2A to engage in
14 exploitative relationships. This is particularly
15 so in light of section 28 of the charter which
16 reads notwithstanding anything in this charter the
17 rights and freedoms referred to in it are
18 guaranteed equally to male and female persons.
19 . Polygamy in this the am context is an equality
20 harming manifestation of a religious practice
21 therefore falls out of the sections of 2A of the
22 charter.
23 Turning then to the genuine nest of religion
24 belief we discuss at section 58 in order to fall
25 within the scope of sectionA religion many
26 believes while the court cannot engage in the
27 theological debates or man testation of that
28 belief the court is required to inquire into the
29 sincerity of honestly beings good faith, and an
30 absence of fictitiousness or capriciousness. The
31 rights holder has a genuinely hold belief or that
32 is the subject of coercion of manipulation. A
33 belief may not be genuine more over where
34 objective circumstances show that the rights
35 bearer was subject to exploitation in the
36 development of that believe. The evidence in this
37 reference shows that polygamy is strongly
38 correlated with harm and therefore it can can be
39 said to lend itself to exploitation. Many women
40 and girls are subject to extreme pressures to
41 insure their appliance clearly spoke of the and
42 climate of fear who are subject to a tight network
43 of control. Many personal witnesses also attested
44 to similar circumstances while in polygamous
45 communities and we cite a number of places from
46 the evidence there at that footnote.
47 It is important to note at this stage of the
57

1 analysis that the rights holders before this Court
2 in this reference are not only those who practice
3 polygamy an as a matter of free and unencumbered
4 choice but also those subject to a coercive force
5 that describes to authority container and
6 entrenched pat arrest can I. Turning now to the
7 section 7 analysis which starts at paragraph # 33
8 of our written closing. The challengers have
9 argued that the MRIL infringes the rights to
10 liberty and security of the person corrected pry
11 section 7 of the charter. There are two stages to
12 this section 7 inquiry. As a stage 1 of the
13 section 7 analysis this Court must ask whether a
14 state deprivation VASZ life liberty or security of
15 person. The availability of prisonment for a
16 section # 293 conviction is sufficient to trigger
17 section 7 scrutiny at this this stage in sum West
18 Coast Leaf says while liberty may be inPRINGed by
19 the potential for imprisonment under section 2933
20 the impugned section does not infringe security of
21 the persons right of the polygamous in had fact it
22 protects the of women and girls in exploitative
23 polygamous relation.
24 The evidence of harm is relevant to this stage
25 of analysis insofar as the evidence shows that
26 women's right to security the person are enGAMGed
27 by the paragraph of ex-play at that tiff polygamy.
28 The second stage of the section 7 analysis
29 requires support to determine whether any breaches
30 of life, liberty or security of the person are
31 done in accordance with the principles of
32 fundamental justice. West Coast Leaf with
33 respectfully submits that section 293 is not vague
34 nor over broad nor grossly disproportionate and
35 does fulfil the TAEPTs of fundamental justice.
36 This light of section 28 of the charter that I
37 have already brought you to West Coast Leaf says
38 that section 7 cannot be applied to the rights of
39 people in polygamous relations without looking at
40 the very different ways in which the section 7
41 rights of a husband and his wives may be engaged.
42 Turning in more detail to the first TAJ of the
43 section 7 analysis at paragraph # 5. The Amicus
44 has argued that section 293 infringe security of
45 the person rights in addition to infringing
46 liberty interests. Section 293 he argues deprives
47 polygamists of the freedom to make fundamentally
58

1 and inherently personal choices with respect to
2 their intimate relations and so implicates
3 basically choices going to the core of what it
4 means to enjoy individual dignity and
5 independence.
6 West Coast Leaf disagrees. Section 7 does not
7 protect the freedom to exploit another person
8 regardless of whether that exploitation occurs in
9 the con it text of an intimate relationship.
10 Thereof when section 293 P is read down to apply
11 to exploitative relationships MRIPSs are not
12 deprived of any constitutionally protected freedom
13 to make personal choices with respect to their
14 intimate relations.
15 At paragraph # 6 we say well the state has no
16 place in the bedrooms of the nation simply to
17 regulate the sexual activities of consenting
18 adults the State does have a role in ensuring that
19 women are safe within the confines of intimate
20 relations. To otherwise is to seal off a
21 significant area of women's experiences from
22 charter protection.
23 It is a perversion of the intent of the
24 charter to use the rights contained therein to
25 create a safe space for men to exploit women.
26 Contrary to the Amicus's submission in regard to
27 the relevance much section # rights to this
28 reference West Coast Leaf says that section 7
29 should be interpreted to protect the substantive
30 rights of women for up holding section 29 # 3 P.
31 In that record the ex-play at that tiff
32 practice of polygamy violates the security of the
33 person by infringes personal autonomy. Women's
34 rights to security of the person is engaged for
35 example when women are denied reproductive
36 control, women are exposed to increased risk of
37 mortality and child birth reasigneded to new
38 husbands or losing their children if they're
39 non-COMPLIENT to the or their husband's control.
40 Adolescent girls are and used as an younger age
41 and women live in tightly controlled climates
42 surrounded by a climate of fear is section 7
43 rights are relevant at this stage of the analysis.
44 Section 7 cannot be used to protect the right of
45 polygamous men to exploit their wives in the
46 private intimate context of marriage. Right to
47 security of the person does not stretch so far.
59

1 At the second stage of the section 7 inquiry
2 at paragraph 70 of your written closing if the
3 Court has found a breach of liberty or security of
4 the person it must then ask whether any
5 infringement is in accordance with with the
6 principles of fundamental justice to be in
7 accordance with the principle of fundamental
8 justice the position cannot be arbitrary or over
9 broad and many had applied to situation in a
10 manner that yields understandable results.
11 The Amicus has articled that section 2 # 3 DEP
12 rig are VAGSs of liberty are not in accordance
13 with the principles of fundamental justice because
14 they were enacted in a pursuit of an unjust
15 objective and are arbitrary overbroad and grossly
16 disproportionate. However, West Coast Leaf says
17 that when exploitation is understood as a required
18 element of the offence this section is either
19 broad nor overly broad nor arbitrarily nor grossly
20 disproportionate. The evidence shows that
21 polygamy lends itself to exploitation and that it
22 ex-as bettererates for example Dr. Cook's evidence
23 showed that polygamy is overwhelmingly practices
24 polygyny, in fact, less than 1 percent of polygamy
25 worldwide manifest as polyandry. Dr. Henrich's
26 evidence shows one would examine EPT that polygyny
27 results in increased numbers of child brides and
28 ever increasing age difference between the husband
29 these logically created results of polygamy create
30 a greater potential for exploitation of young
31 women in polygamous relations than other forms of
32 real estates and the evidence of these lay
33 witnesses in this reference show that these
34 expected results of polygyny manifest as you board
35 nation and harm in narrow real leave experiences.
36 Other associated harms of the practice of
37 polygamy include deprivation of the ability of
38 women and girls to freely choose when to marry.
39 When to engage in sex activity the evidence shows
40 these harm are manifest in the polygamous context.
41 In regard to the Amicus's argument that section
42 293 is arbitrary and therefore violates section 7
43 West Coast Leaf submit there's is a clear TEKS it
44 between section 29 # # and it's objective to
45 punish behaviour that is reason BLBL apprehended
46 to be harmful to women and children it detrimental
47 to their read down to apply only to exploitative
60

1 relationships and only to those persons
2 perpetuating the exploitation section 293 targets
3 exactly the harm by which it professes to aim.
4 The question of overbreadth is also dealt with by
5 the principle of reading down. If the polygamy
6 provision is read down to apply only in this
7 ex-employ TAF and exploitation applied as a
8 standard already known and defined in criminal law
9 as my colleague Ms. Wintering ham has already
10 spoken of the section fulfils its constitutional
11 mandate to be precise and knowable. Finally the
12 law is not grocery disportion national the Amicus
13 claims that the criminalization of profoundly
14 personal choices makes MRILS which incredences
15 harm rather than preventing T however there was
16 evidence before this Court that the insularity of
17 the community of Bountiful is directly corrected
18 to the at the at the times of the religion rather
19 than fear adopts the argument of the Attorney
20 General of British Columbia that it makes more
21 sense that stems from the crimes and human harms
22 that are associated with polygamy than fear of
23 prosecution for polygamy itself given the
24 historical lack of enforcement of this section
25 there is insufficient evidence that the law harms
26 the rights or safety of those it criminalizes
27 while there is ceased significant evidence before
28 this Court that the rights of women and children
29 at stake.
30 THURNG then to section 15 the right to
31 equality which deal with at paragraph 77 to 83 #
32 of our closing.
33 The Amicus claims that section 293 P is
34 discriminatory on the basis of religion and family
35 status. Contrary to section 151 submits section #
36 293 does not infringe the substantive equality
37 sections in the CHAER T you have already been
38 taken to the section of Whistler v. Canada and the
39 very recently most recent section of section 15
40 law but I will go there one more time and say
41 there are two stages to the section 15 test. The
42 first one asks whether the law creates a dust
43 stings that is based on enumerated or unanimously
44 GOUS grounds and the secondly does the distinction
45 create a disadvantage by perpetuating we say
46 regardless of whether the provision satisfies the
47 first step of this test and you've heard
61

1 considerable submissions on this already the
2 equality claim must fail second stage. Section
3 293 does not perpetuate presently or Styrofoam
4 typing and is it not undermine the human dignity
5 of polygamous the section 2 # 3 P violates the
6 section 15 rights of polygamists presumes a broad
7 interpretation of 293 # the reaches far beyond the
8 interpretation urged by West Coast Leaf. Where is
9 section 229 P is read down to apply to another
10 exploitative SIKSs the weaknesses of the Amicus's
11 breach arguments are illuminated there is to
12 infringement of Criminal Code provision ensuring
13 that PAEM are not allowed to exploit, harm or
14 disKRIMENT nature against other people. For
15 example the Amicus argues in thinks closing that
16 the law perpetuates premising against policewomens
17 and treats hem in a by assuming polygamous are
18 bad. This is precisely what supports a red down
19 version of 293. This preserves the
20 constitutionality of the provision by not assuming
21 that all mull itty spouse relationships are bad
22 and Taylors the praying is those relationships
23 have be indicia of most if not all the
24 distinctions and points of disagreement between
25 list of documents West Coast Leaf and will Amicus
26 on the alleged breaches comes down to this point.
27 It comes down to the point of interpretation.
28 The purpose of section 15 and, in fact, the
29 underlying INTEPT of all charter rights is the
30 protection and promotion of human dignity and the
31 essential value of -- of he have individual human
32 being. Human dignity is an abstract concept but
33 one that has very real implications for the
34 equality analysis and eye a quality claimants in
35 our R v. cap. The emphasizes this point they said
36 there can be no doubt that human dignity is an
37 essential value underLOIG the section 15 equality
38 guarantee. In fact. The protection of all the
39 rights guaranteed by the charter has as its load
40 star the promotion of human dignity.
41 There is no infringement of human diagnose
42 knit where the law or discriminating against
43 another perpendicular. In fact, human dig night
44 is promoted pi such a law. A narrow reading of
45 section 2 # 3 as applied to exploitative
46 polygamous relationships promotes women's equality
47 and prohibits and oppressive discriminatory
62

1 conduct. It therefore does not infringe upon the
2 human dignity of polygamists and consequently did
3 is it not infringe section 15 (it is 11).
4 Moreover it also is it not ink fringe on the
5 polyamorists because it includes them from the
6 purview of the law although the law at large may
7 do so. In DAP as a bar to equality claims because
8 it's with an a notion introduced to equality
9 jurisprudence to promote the engage. Equality
10 rather than to under mine it. West Coast Leaf
11 agrees the concept of human dignity should only be
12 used to further the right to quality. The Supreme
13 Court of Canada cannot have intendeded for this
14 shift in their focus on human big dig NOIT apply
15 to the Amicus's section 15 breach argument in the
16 case at bar where the I am PUBed section is SDIEPD
17 in both pup and OFK to promote all the quality
18 from about women and girls to and prohibit in this
19 case the section 15 claim must fail on the grounds
20 does not infringe upon the human dignity of
21 polygamists. Define otherwise would be to
22 undermine the very purpose of section 15.
23 The Amicus has argued that the law is based
24 entirely on presumed stereotypical characteristics
25 and not responsive to the character
26 characteristics of the particular therefore having
27 the effect of demeaning the dignity of polygamous
28 the evidence at trial has shown that the law is
29 very much rooted in real and probability harms and
30 not on stereotypes. A prohibition on exploitative
31 relationships cord upon thes to of many of the
32 relationships on which this Court has heard
33 evidence. The Amicus assertion in this regard
34 must also fail. The state has an obligation to
35 protect equality rights. Section 2 # 3 full tills
36 the counsel's obligation to consider the equality
37 rights of women and girls of faith and obligation
38 ask to ensure they are not ex-employed subject to
39 any questions you may have those are my
40 submission.
41 THE COURT: Thank you very much. I think we'll take a
42 break.
43 MS. GAFFAR: Absolutely.
44 THE CLERK: Order in court. Court is adjourned for an
45 afternoon recess.
46
47 (AFTERNOON RECESS)
63

1 .
2 THE COURT: Ms. Gaffar.
3 MS. GAFFAR: My Lord just as you have the unenVEEBL
4 task of interpreting section 2933 I have the
5 unenviable task of addressing you late in the day
6 on a Friday after the week of submissions.
7 THE COURT: You have my unconfided attention.
8 MS. GAFFAR: Sadly I will be referring to you further
9 case authority and now we have alienateded the DAM
10 I will not be taking through our submissions
11 paragraph by paragraph under section 1 which I'm
12 sure you'll be relieved to hear but I will also be
13 dealing with some points raised in had the closing
14 submissions of others.
15 As they affect West Coast Leaf's submissions.
16 At the section 1 stage it's about limitations.
17 It's about weighing beings competes in different
18 charter rights and it's about considering the
19 impact of women's and girl's equality rights in a
20 very real way as they impact the charter claimants
21 section -- excuse me right under section 1.
22 The question we have here is can and should
23 the charter claimant's right be limited. The
24 SPOENS of West Coast Leaf is emphatically and
25 absolutely yes. It is at the section 1 stage,
26 My Lord that the effect of West Coast Leaf's
27 submissions on reading down truly shine. If a
28 read down section 293 establishes a criminal
29 prohibition that would fulfil the justification
30 requirements of section 1 perfectly.
31 My Lord, if I may give you just a brief
32 synopsis of with I'm going there's a bit of
33 jumping around because I will be dealing with
34 different aspects located this different parts of
35 our submission but under the rubric of section be
36 1 is.
37 I will begin by discussing the considerations
38 under section 1 and those include the underlying
39 values. I will ask Your Lordship to go back to
40 first principles. I will then discuss briefly the
41 weighing exercise that occurs here. I will then
42 discuss the factual and social context. I will
43 then discuss harms but you will be relieved O hear
44 I will be not be dealing with each and every harm.
45 What I would like to focus on are those harms that
46 go beyond the obvious ones and directly implicate
47 the equality rights of women and girls.
64

1 I would also like to respond to some aspects
2 of consent that have been referred to in other
3 submissions.
4 After that I will engage the oaks test but will
5 only be discussing aspects of the oaks test and
6 more particularly responding to comments made in
7 other submissions.
8 First, the considerations under section 1. My
9 first point here and if you wish to have just the
10 reference in our submission on this point it's
11 located at paragraph 86.
12 THE COURT: Thank you.
13 MS. GAFFAR: Of our submissions. We're not reinventing
14 the wheel. The underlying values and principles
15 of a free and democratic society include as the
16 ultimate standard against which a light -- excuse
17 me a limit or a right or freedom must be shown to
18 be reasonable ask demonstrably justified again
19 it's the underlying values and principles of a
20 free and democratic society which include the
21 genesis of the rights and freedoms guaranteed
22 under the charter.
23 I am going to start earlier My Lord in asking
24 you to turn to a case that is contained in the
25 fourth volume of the joint book of authorities at
26 tab 47. That is the Ross decision.
27 .
28 THE COURT: Thank you.
29 MS. GAFFAR: And at paragraph 77 which commences the
30 section 1 analysis and we're cheating a bit here
31 My Lord because it's the very apt quotation from
32 the oaks decision that is cited in Ross that we
33 using. At paragraph 77 is the citation from the
34 Chief Justice Dickson as he then was in the oaks
35 test. And again one may say well this is quite
36 obvious but My Lord I would like to refuse you to
37 the language in the various cases that in my
38 respectful submission is helpful to your task.
39 In paragraph 77 Mr. Chief Justice Dickson said
40 in oaks the court must be guided by the values and
41 principles essential to a free and democratic
42 society which I believe embody to name put a view
43 few and these are the points I emphasize My Lord
44 respect for the inherent dignity for the human
45 person. Commitment to social justice and equality
46 accommodation of a wide variety of beliefs respect
47 for cultural and group identify I can faith in
65

1 social and political institutions which enhance
2 the participation of an individual's and group's
3 in society.
4 And I am not going to read you the rest of
5 that because I provided that to you in point form
6 already.
7 Respect for the inherent dignity of the human
8 person commitment to social justice equality.
9 The underlying values imbue everything that we
10 do now. From this point on. And we know that
11 there are numerous values and principles that
12 cover the guarantees enumerated in the charter and
13 more. There are different emphasize that one
14 would place N O these and certainly the weighing
15 exercise will assume varying degrees of important
16 depending upon the circumstances of a particular
17 case.
18 My Lord, I now move to the factual and social
19 context. This submission begins at page 87 of our
20 is submission. Conflicting constitutional values
21 must be understood in their factual and social
22 context. That's uncontroversial. But we ask that
23 Your Lordship to go back to first principles and
24 analyse any breaches from the perspective of these
25 underlying values and in had furtherance of that
26 My Lord may I please ask you to go to the Keegstra
27 decision. It's located in the supplemental
28 Attorney General of Canada book of authorities. I
29 am not sure which volume. I apologize but it's at
30 tab 36
31 THE COURT: Right.
32 MS. GAFFAR: My Lord, you will of course be aware of
33 the Keegstra decision which of involves what was a
34 prosecution upped the hate propaganda promoting
35 hatred provisions of the code and at paragraph 46
36 of that decision at the section 1 stage the
37 Supreme Court of Canada said the following. It is
38 important -- excuse me. It is important not to
39 lose sight of factual circumstances in undertaking
40 a section 1 analysis for these shape a Court's
41 view of the both the right or freedom at stake and
42 limit the limit proposed by the State neither can
43 be surveyed in the abstract. As Wilson J said in
44 Edmonton journal supra referring to what she
45 termed the contextual approach to charter citation
46 given ask there's follows a quotation and I would
47 like to take you to the middle of the quotation it
66

1 begins the contextual approach attempts. The
2 contextual approach attempts to bring into Sharpe
3 relief the aspect of the right or freedom which is
4 truly at stake in the case as well as the relevant
5 aspect was any values in competition with it.
6 It seems to be more sensitive to the reality
7 of the dilemma POEed by the particular facts and
8 this is the point that you now emphasize My Lord
9 and therefore more conducive to finding a fair and
10 just compromise between the two competing values
11 under section 1.
12 My submission to you is that of course that
13 the submission of West Coast Leaf with regards to
14 reading down constitutes the most fair and just
15 compromise when weighing the competing rights.
16 My Lord, I now move it to the issue of harms
17 in the factual and social context. In my
18 respectful submission the evidence and I am not
19 going to belabour this point. The evidence shows
20 that certain harms are plausible. The challengers
21 say that it has not opinion proven conclusively
22 these harms flow from polygamy. Is I don't wish
23 to belabour this point. It has been made it to
24 you a number of times. The charge it TER law does
25 not require actual proof and we suggest that the
26 identified areas of harm are plausible and that
27 there is a reasonable apprehension of risk of
28 harm. For your reference I'm now topically at
29 paragraph 88.
30 THE COURT: Yes.
31 MS. GAFFAR: Polygamy is predominantly practised in the
32 context of extreme gender inequality. Polygamy
33 feeds and exacerbates that gender inequality and
34 polygamy becomes the practice of exploitation of
35 women and girls. The harms section of our
36 submission is located at beginning at page 21 of
37 our submission. I ask you to turn to that
38 section. What I intend to do is to direct your
39 attention to what we say are the harms that
40 institutional to polygamy and transcend the
41 obvious harms. One of the submissions made to you
42 there are other legal provisions in the code that
43 deal with the harms. So you don't need section
44 229 # # and what I with an issue to draw to your
45 attention in the context of women and girls are
46 those harms that are pervasive. In my respectful
47 submission there are more prehave any sieve and
67

1 systemic harms to women and girls that exist
2 within the institutional framework of polygamy
3 which require section 293 if we go to the first
4 page I begin at paragraph 51. West Coast Leaf did
5 not engage in a witness by witness analysis of the
6 harm evidence rather we attempted to summarize it
7 so Your Lordship would have a succinct list of the
8 harms that we say flow or associated to polygamy
9 and the first those that we consider to be
10 pervasive that go beyond the physical and sexual
11 abuse harms that are so evident start with the
12 asymmetry of the polygamous or plies YUNTS in
13 which one man has you will many Tim weigh of OS
14 that offends women's dignity and the right to
15 equality.
16 Next, we say the unequal roles in polygamy are
17 based on gender. And it results in a SKUed
18 perception of gender roles and stereotypes. This
19 imbalance of gender rules becomes internalized in
20 women and girls as well at their children. And
21 that imbalance has an impact on the self esteem
22 and self perception of women and girls reducing
23 their ability to fully consider their choices in
24 decision making. The patriarchal structure of
25 households permits the husband to exercise
26 increased control over women and girls and in the
27 areas of physically socially emotional.
28 Financially within the context of the marriage
29 marital relationship parental relationship.
30 The evidence has demonstrated that in certain
31 polygamous communities a premium is placed on
32 compliance with the normal norms and customs of
33 the community. Such control makes rigid demands
34 to obedience to male authority figure and it is
35 customs they deem important. Geographic isolation
36 and so you know My Lord I'm at paragraph
37 sub-paragraph D.
38 THE COURT: Yes.
39 MS. GAFFAR: Geographic ice social isolation and
40 insularity permit this control and facilitate the
41 indoctrination, this institutionalalized imbalance
42 with regards to control ask power within the
43 relationship facilitates the indoctrination in the
44 community at schools and in religious instruction.
45 This exercise of control has been described
46 by some as creating a "cult" or cult-like
47 environment in which polygamy is mandatory for the
68

1 elevation of the male authority figures. And in
2 particular My Lord there were two witnesses that
3 referred to that and itch given citations for all
4 of these propositions but in particular I asked
5 the court to look at Exhibit 13 the Brandeis brief
6 which is the life in Bountiful report prepared.
7 Personal history number #. As well as what I call
8 the Quebec report the status of women in Quebec
9 report at page 25.
10 You have heard much about the women and girls
11 becoming used as commodities are or resources in
12 which marrying girls and women are tools for
13 social advancement and resource distribution.
14 You've also heard about how women may be
15 reassigneded to other husbands that their children
16 may be reassigned to other families noncompliant
17 women and children may be reassigned to other
18 husbands and families as punishment.
19 You've heard much about placement marriages
20 which are did he go anywayed by men denying women
21 the choice of when and who to marry. In my
22 respectful submission, My Lord, this creates a
23 sexual aRIS to accuracy in which male leaders and
24 authority figures enjoy or feel entitled to the
25 increased status and sexual access derived from
26 placement marriages and this also can flow from
27 the evidence of Dr. Shackleford and Dr. Henrich as
28 well as those listed here I have listed
29 Dr. Henrich.
30 You have heard much about the age of brides
31 being driven down by the decreasing pool of
32 marriageable women. You have heard much about the
33 other harms that I have listed here that follow
34 concerning the age of brides and so forth what is
35 of particular concern is that as a result of the
36 youthful age of brides there is an increasing age
37 gap difference between the bride and the older
38 husband. This creates an unequal power difference
39 in the relationship right from the extort start
40 where control is much more easily exercised by the
41 older male husband over the youthful bride.
42 I am at paragraph I. I'm now going My Lord to
43 paragraph L.
44 Another harm is the loss of choice of women
45 regarding the cumulation of new wives which
46 further exacerbates feelings of powerlessness.
47 Women lose further control of their households
69

1 economic well-being and emotional well-being.
2 Women and children also face negligent
3 reactions if they decide to leave the polygamous
4 unions. Because property income rights may be
5 designated to the husband or the community women
6 commonly experience economic difficulties as well
7 as problems with child custody and access. The
8 bottom line is that polygamous women are usually
9 not well equipped to deal with living outside of
10 their polygamous community.
11 My Lord I turn to paragraph -- sub-paragraph
12 P. You have heard much evidence with regards to
13 experiences of sexual abuse both as adults and as
14 children. What I wish to draw your your attention
15 is this, these abuses can cannot be dismissed as
16 personal deviations not caused by polygamous
17 unions exploitive polygamous unions. Again the
18 power control exercised by men over women and
19 girls exploitative polygamous unions creates an
20 environment conducive to sexual abuse.
21 I am now at sub-paragraph R. Women and
22 children experience psychological and emotional
23 problems as a result of living in polygamous
24 unions. There are further lists harms but they
25 have been dealt with amply by other parties and I
26 don't wish to proceed further on that.
27 Not all harms that flow or are are associated
28 to policewomen are what we know to be crimes in
29 the Criminal Code. And those are the harms that I
30 wish to address.
31 Harms to women and is girls can be both
32 physical and psychological and psychological harms
33 provide a valid objective of criminal sanctions
34 for example criminal harassment laws deal with
35 harm that flows from psychological reactions and
36 deprivations because of criminal harassment.
37 My Lord, I now turn to still under the factual
38 and social context an aspect of consent. It would
39 be incorrect to characterize the West Coast Leaf
40 submissions as ignoring or dismissing women who
41 appear to consent to enter into polygamous unions.
42 We don't dismiss women who consent or dismiss
43 their consent. We don't dismiss anyone. What we
44 are could go is asking this Court to examine or
45 asking the Court if it you read down the provision
46 to examine the circumstances in which consent is
47 given. Criteria for free consent may apply in
70

1 some circumstances but not in others.
2 Consent is just one factor of exploitation.
3 It is not determinative. This is not a case of I
4 consent therefore I am. Exploitation is a much
5 more nuanced concept with other relevant factors.
6 My Lord I now wish to launch into the oaks
7 test.
8 Again, we're not reinventing the wheel here.
9 I would like to address some issues that have
10 arisen from other submissions.
11 The first aspect of the oaks test concerns the
12 objective is it pressing and substantial. I begin
13 by discussing the identification of the objective.
14 We say the objective is the prevention of harm to
15 women and children in polygamous or polygamous
16 relationships and that is a valid concern for
17 Parliament. And I'm at paragraph 90. The learned
18 counsel for the Amicus in their closing submission
19 at paragraph 588 indicate that the objective of
20 protecting individuals especially women and
21 children is widely overbroad. That it sends
22 entirely the wrong message on deterrence that the
23 objective of preventing harm on society is based
24 on utter speculation which is detached from the
25 factual evidence and that these are not the kind
26 of harms which merit criminalization.
27 We respond as follows. The quality of women
28 and girls is undeniably an obviously a valid
29 concern for Parliament. It's not an overly broad
30 objective and has been considered a legitimate
31 objective in the constitutional jurisprudence and
32 my example is you is the Butler decision. We
33 cannot agree that the evidence is based on utter
34 he speculation. Nor detached from the factual
35 evidence and I have nothing further to say on that
36 point.
37 The learned counsel for the Amicus stated at
38 paragraph 602 of their submissions that the Amicus
39 would of course agree that the objective of
40 protecting individuals especially women and
41 children from harm is obviously meritorious but
42 the existence of harm is not an element to the
43 offence. My response is this, the imposition of a
44 criminal sanction is predicated on the notion that
45 a particular activity presents a risk of harm or
46 causes harm. A criminal provision does not
47 require the existence of harm to be articulated in
71

1 the language of the offence. An example of this
2 is section 465 sub 1 paragraph A of the Criminal
3 Code. Conspiracy to commit murder. A concept I'm
4 becoming much more familiar with at it this time.
5 The actual murder is not a required element of
6 the offence. The death is not a required element
7 of the offence. The existence of actual harm is
8 not an element of the offence. You don't have to
9 put it in the language of the provision. My Lord,
10 I think it may be helpful to refer you to the
11 Irwin toy decision. That is located in your first
12 joint book of authorities, volume 1. Your first
13 joint book of authorities, volume 1. Tab 16.
14 My Lord, may I ask you it please turn to
15 paragraph 63 of that decision. And of course
16 Irwin toy was the decision involving advertising
17 regulations in Quebec that tried to regulate
18 commercial advertising to children 13 years or
19 under. In paragraph 63 it's my hope this language
20 is of some assistance to you in your task.
21 The Supreme Court of Canada states absolutely
22 precision in the law exists rarely if at all. The
23 question is whether the legislature has provided
24 an intelligenceable standard according to which
25 the judiciary must do its work. The task of
26 interpreting how that standard applies in
27 particular instances might also be characterized
28 as having addition correction NAER element.
29 That's your unenviable task because the standard
30 can never specify all the instances P in which it
31 applies. On the other hand where there is no
32 intelligenceable STBD or legislature is givings a
33 plenary discretion to do whatever is best in a
34 wide set of circumstances there is no limit
35 prescribed by law.
36 This of course is said in the context of
37 determining whether a limit is prescribed in law
38 but in my submission amply applies at this portion
39 of the application as well. When read down
40 section 2933 intelligible.
41 My Lord, when determining the objectives of
42 particular impugned provision you would of course
43 look to the domestic legal context as well as the
44 international legal context. And I wish to bring
45 to your attention and take you to the brooker and
46 mark VITS decision of the Supreme Court of Canada
47 and this a case which we have described as
72

1 paragraph # # # of our submissions because there's
2 language in that case that again we say assists
3 you in your task.
4 We are argued section 1 in a bit of a vacuum
5 should Your Lordship get to this stage of the
6 analysis if you deem that there is a breach of
7 particular charter right we of course are arguing
8 not knowing which right that might be.
9 But may I ask you please to turn to brooker.
10 It's located in your first volume of your book of
11 authorities at tab 9 of your joint book of
12 authorities.
13 And I begin at paragraph 2 and there are only
14 three references brief references.
15 At paragraph 2 the court states the right to
16 have differences protected however does not mean
17 that those differences are always hedge Monday I
18 can. Not all differences are compatible with
19 Canada's fundamental values and accordingly not
20 all barriers to their discretion are arbitrary.
21 Determining when the assertion of a right based on
22 difference must yield to a more pressing public
23 interest is a complex nuanced and fact specific
24 exercise that defies bright line application. Its
25 at the same time a delicate necessity of
26 protecting the evolutionary integrity of mull itty
27 cultural and public confidence in its importance
28 and this case involving a women who have the
29 Jewish faith who was attempting -- trying to get a
30 divorce in her own faith and her husband was
31 refusing.
32 At paragraph 70 the Court stated even if
33 requiring him her husband to comply with his
34 agreement to give a get can be said to conflict
35 with a sincerely held religious believe and to
36 have non-trivial sequence consequences for him
37 both of which I have difficult discerning such a
38 prima facie infringement does not survive the
39 balancing mandated by this Court's jurisprudence
40 and the Quebec charter.
41 And it comes down to equality rights, My Lord.
42 Paragraph 92 of the decision.
43 The public interest in protecting equality
44 rights the dignity of Jewish women in their
45 independent ability to divorce and remarry as well
46 as the public benefit in enforcing binding and
47 valid contract obligations are amongst the
73

1 interest and values that outweigh Mr. Mark VITS's
2 claim in an enforcing paragraph 12 of the concept
3 would interfere with his religious freedom.
4 My Lord, I turn to the international legal
5 context. Only for this. Why is the international
6 human rights legal context important to this
7 Court's consideration? I have a reference to the
8 Keegstra decision I'm not going to ask you to turn
9 to it but I will tell you where it's located in
10 just provide a brief submission on its content.
11 In the Keegstra decision which is located at the
12 supplemental joint book of authorities at tab 36
13 the citation I wish you to refer is paragraph 66
14 WRSH the Court states generally speaking the human
15 rights objections taken on by Canada democratic
16 society and thus those values and principles that
17 underlie the charter itself. The Court in
18 Keegstra refers to reference republic particular
19 service employee relations and slayed
20 communications and quote slate communications as
21 follows. Canada's international human rights
22 obligations should inform and this is where it
23 applies to section 1 is because it applies in two
24 ways. Not only the interpretation of the content
25 of rights guaranteed by the charter but also the
26 interpretation of what can constitute pressing and
27 substantial section 1 objectives which may justify
28 restrictions upon those rights.
29 In the context of justifying and infringement
30 of section 2W the majority in late made a point of
31 noting and I emphasize this point a value enjoying
32 status as an international human right is
33 generally to be ascribed a high degree of
34 importance under section 1 of the charter.
35 And you've heard submissions from the Attorney
36 General of Canada with regards to equality and
37 human rights treaties and so forth against the
38 discrimination against women.
39 So it assists you in both identifying the
40 objective for section 1 purposes as well as
41 amplifying the pressing and substantial nature of
42 this concern for section 1 purposes. I do not
43 intend to take you through my submission with
44 regards to the general comments and that sort of
45 thing.
46 I would like to turn now to the objectives
47 dealing with pressing and substantial concern.
74

1 Now, My Lord I do have some submissions to go. I
2 note the time. I wish to press on if that's
3 agreeable to Your Lordship.
4 THE COURT: As do I.
5 MS. GAFFAR: So we say to you that in determining
6 pressing and substantial concern that women's
7 equality is an important component of Canadian
8 domestic legislature and law and international
9 law. There are aspects of this that I wish to
10 address. And the first is the notion that well
11 the harms that you have heard about in this case
12 are dated or historical and are either no longer
13 exist or are are no longer encouraged.
14 And you heard that from professor Campbell.
15 You heard that from some of the FLDS witnesses.
16 My first point is that the harms described in the
17 evidence arising from the Yearning For Zion
18 seizure is sufficiently recent for our purposes.
19 In any event I say that the pronouncements
20 that the harms identified in this reference are
21 dated historical only or that the relevant groups
22 have now eye shoed for example under age major
23 every woman or young woman is entitled to concept
24 has not been provided with the proper foundation.
25 Regardless it is not necessary to find
26 absolute recency in occurrences. There is a
27 logical connection between polygamy and harms that
28 would constitute a pressing and substantial
29 concern.
30 Also we must keep in mind that some of the
31 witnesses have described that with media O legal
32 scrutiny some practices have baited for a period
33 of time but then resumed when that scrutiny has
34 weakened.
35 My Lord I now turn to the means test. The
36 proportionality test. In the submission I'm at
37 paragraph 94.
38 THE COURT: Thank you.
39 MS. GAFFAR: In my respectful submission the entire
40 causal framework of polygamy is properly the
41 subject of criminal sanction because it targets
42 the problems holisticly rather than in a piecemeal
43 fashion. The provision as read down captures the
44 institutional framework that creates the
45 circumstances in which other crimes and further
46 harms may occur.
47 I turn to minimal impairment. He will not
75

1 spend a great deal of time the Amicus and others
2 argue there are other legal provisions that exist
3 to deal with the harms. I don't intend to go
4 through it in any great detail it's detailed at
5 paragraph 94 and 95 of our submission. You have
6 already had submissions on the Sharpe decision
7 that deals dispositively with that argument. I
8 intend to move on.
9 Next, under minimal impairment the Amicus
10 argues that section 293 is too broad. And in the
11 following paragraphs in the Amicus closings the
12 overbreadth is focussed. Amicus paragraph 607 is
13 discussion of the provision being overbroad in a
14 variety of relationships captured Amicus paragraph
15 609 that it is overbroad in the individuals it
16 criminalizes and Amicus paragraph 610 that it is
17 overbroad in how relationships and individuals are
18 targeted. It denounces conduct that is not
19 inherently harmful.
20 Our response. It's very simple given that you
21 have heard it at least 50 times already since
22 12 o'clock today. Using the constitutional
23 doctrine of reading down to properly interpret
24 section 293 best insures that any affected charter
25 rights which are being limbed by the application
26 of section 2 # 3 are minimally impaired. This is
27 the compromise spoken by Madam Justice Wilson.
28 Reading down affects the best balancing of rights
29 accords the appropriate balance to the important
30 equality rights of women and girls while
31 mitigating the harm to other charter rights
32 affected by section 293 religion, liberty,
33 security, equality or so called equality.
34 Now, I have to take some issue with the
35 closing submissions on this point as they affect
36 West Coast Leaf in this reading down in the
37 Attorney General of British Columbia's submissions
38 as well as Canada's. In the Attorney General of
39 British Columbia at paragraph 415 of their closing
40 they say that properly interpreted the law does
41 not apply to polyandry or same sex multi-party
42 relationships. That a redrafting the law, their
43 term, to capture only exploitative or under age
44 marriages or to apply only polygynous men would
45 not help. The harms of polygamy are felt in
46 society regardless if they are are felt in any
47 particular relationship. They go on to say at
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1 paragraph 416 of their submission that the
2 difficulty in requiring as West Coast Leaf does
3 that elements of exploitation or inequality are
4 necessary in order to commence a prosecution is
5 the same. They're saying these harms are felt
6 throughout society if polygamy is harmful it is
7 not necessary or desirable to parse it into good
8 or bad polygamy. By reference to its consequences
9 in any given situation.
10 The Attorney General for Canada says that in
11 its paragraphs 428 and 4 had 29 says that section
12 293 # only applies to multiple marriages whether
13 or not State sanctioned and is not concerned with
14 the sexual behaviour cohabitation of individuals.
15 They say at paragraph 444 there are no harmless
16 classes or cases of polygamy. The evidence before
17 the Court indicates that all polygamous marriages
18 expose participants children communities to
19 significant harms. We say this. The consequences
20 of polygamy are at the heart of its criminal
21 prohibition. To say that it it is not necessary
22 or desirable to parse it into good or bad polygamy
23 by reference to its consequences in any given
24 situation is contradictory.
25 AGB C seeks to interpret section 293 in a
26 manner that exempts polyandry or polyamorous
27 relationships or same sex. That's a
28 contradiction. Because they are are already
29 determining these are polyandrous or polyamorist
30 based on their own definition are not harmful.
31 The sequences are not harmful. But more
32 importantly this approach both attorneys general
33 take an approach that fails to properly seek to
34 attenuate the infringements on the charter
35 claimant. This approach lacks the compromise
36 necessary in seeking to minimally the claimant's
37 rights. The party versus said to you AGBC and
38 Canada say will not equalitarian polyamorous
39 relationships because you can interpret it that
40 way. We say there should be some mechanisms
41 permits this court to state that section 293 does
42 not apply to polyandry or victims or equalitarian
43 pole an mechanisms and the best Mcissuing is
44 reading down.
45 But I give in turning -- excuse me, you give
46 this XACHL we're back to the poor drinking and
47 driving laws. The notion has been accepted by the
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1 Courts particularly in the Supreme Court of Canada
2 that drinking and driving is considered a
3 dangerous activity. However, our laws do not
4 create zero tolerance for drinking and driving.
5 We have have drawn a line at 0.08 blood alcohol
6 level. Will we have a requirement for actual
7 impairment in the -- before the criminal sanctions
8 can can apply. It's not enough to say I had a
9 drink. I got in the car and I drove. For our
10 purposes for criminal sanctions that drink had to
11 have caused you to be impaired. And given the
12 time My Lord I would like to merely give you a
13 reference but not an ask you to turn to it. It is
14 in the Irwin toy decision at paragraph 74 had
15 again that's located in your joint book of
16 authorities at tab 16 where they state where the
17 legislature mediates between the compete claims of
18 different groups in the community it will
19 inevitably be called upon to draw a line marking
20 where one set of claims legitimately begins and
21 the other fades away without access to complete
22 knowledge as to its precise location.
23 That's back to your unenviable task.
24 Finally, My Lord, the effects. The salutary
25 effects of the objective in our submission
26 outweigh the deleterious impact on any perspective
27 infringements. We have summarized some of the
28 salutary effects beginning at can she or in
29 paragraph 97 of the submission. I don't intend to
30 take you through them. I summarize as follows.
31 Systemic or institutional polygamy mandates
32 unequal roles in the following spheres mayor a
33 tall, social, economic, parental and sexual.
34 What we seek is the prevention of harms,
35 My Lord. A salutary effect in our our submission
36 of having to provision of section 2 # 3 provision
37 that focuses on exploitative polygamy many our
38 respectful submission serve to deter and prevent
39 the harm.
40 Certain questions have been raised about,
41 well, section 293 P has never been enforced. How
42 can you have a salutary effect if it's never been
43 enforced. We agree with the propositions in the
44 Lucas decision as well as the la about a decision
45 that the paucity of PRK ares do not necessarily
46 reflect on the seriousness of the problem.
47 What about the ability to enforce. We have
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1 heard much about how if these circumstances what
2 good is it if you can can't get people to report.
3 Can't get people to provide evidence. We say that
4 if it's read down to apply to only ex-play at that
5 tiff polygamists that would reduce the barriers to
6 enforcement that first of all having a requirement
7 for exploitation will assist in enforcement
8 exploitation is already a concept known to us in
9 the Criminal Code. There should be reduced
10 difficulties in he be forcing a prohibition
11 against exploitative polygamy. Also if
12 polygamists but only the exploitative
13 polygamistses relationship is criminalized this
14 facilitates decreased reporting because the person
15 who is not engaged in had ex-play at that tiff
16 polygamy would not fear prosecution by coming
17 forward to report those activities that he or she
18 said sees that are bad.
19 And again and I'm very close to the end,
20 My Lord. I refer you to the US -- the Utah
21 Supreme Court decision state and green 2004 I
22 don't ask you to turn to it now it's at paragraph
23 40 it's contained I believe in the AGBC maybe the
24 AG Canada submission but I don't know because he
25 didn't follow his oral submissions. But it's
26 about that a wall of silence they talk about.
27 That these -- a lot of the crimes in polygamy
28 counsel side with crimes targeting women and
29 children. There's that wall of silence and they
30 say that it is because of the wall of silence that
31 you need to prosecute. It's a justification for
32 criminalizing the act and effectively breaking
33 down the wall.
34 Deleterious effects. The only one of real
35 note that I wish to address is that is from the
36 Amicus saying that one of the consequences of
37 obeying section 293 would be a deprivation of
38 religious freedom. However, there are some points
39 to be made about this. According to professor
40 Campbell and witnesses like witness number 2 it
41 they have indicated that as long an as long as
42 they be open to the idea of polygamy that is not a
43 violation of the religious belief concerning
44 polygamy. As long as you're open to engaging in
45 polygamy but you can choose, they say, to be
46 monogamous. We say as well that the deprivation
47 of religious freedom that may exist at this stage
79

1 as a deleterious effect is mitigated by reading
2 down because that permits religious believes to
3 continue as long as the polygamy that is practised
4 is practised in a non-exploitative fashion.
5 The Amicus argue that is there may be a loss
6 of libertyings a loss of freedom to choose how do
7 you arrange your intimate affairs. We say both
8 these concerns are addressed by reading down if it
9 applies only to exploitative polygamy there's no
10 loss of freedom to choose to have more than one
11 spouse. There's only the loss of freedom to
12 practice polygamy in an ex-play at that tiff
13 manner. Just so you're aware My Lord in the
14 closing submissions of British Columbia at the end
15 there in the section deleterious affects there's a
16 reference a helpful reference which I'm not going
17 to take you to in Keegstra that the expressive
18 activity of which this provision aims is of a
19 special category, a category only tenuously
20 connected with the values underlying the guarantee
21 of freedom of speech it's located at paragraph 1 #
22 35. There was no citation for that proposition.
23 It's at paragraph 135.
24 My Lord I close with this the alleged
25 deleterious affects are clearly out iweighed by
26 the pressing substantial purpose of the
27 legislation which is prevention of harms to women
28 and children. In our submission the interpret
29 tiff task identified by West Coast Leaf best
30 addresses each element and as such the provision
31 can be justified and read down.
32 THE COURT: Thank you. Anything before we close?
33 Monday then and polygamy Canada is next. Monday.
34 THE CLERK: Order if court. Court is adjourned until
35 April 4 had, 2011 at 10 a.m.
36 (Proceedings adjourned at 4:16 p .m.)
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