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In the Supreme Court of British Columbia IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 Date: 20111123 Docket: S097767 Registry: Vancouver In the Matter of: The Constitutional Question Act, R.S.B.C. 1986, c 68 And In the Matter of: The Canadian Charter of Rights and Freedoms And in the Matter of: A Reference by The Lieutenant Governor In Council Set Out in Order In Council No. 533 dated October 22, 2009 concerning the Constitutionality of s. 293 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 Before: The Honourable Chief Justice Bauman Reasons for Judgment Counsel for the Attorney General of Craig E. Jones British Columbia: Leah R. Greathead Karen Horsman Sarah A. Bevan Eva L. Ross Freya Zaltz Counsel for the Attorney General of Canada: Deborah J. Strachan R. Keith Reimer R. Craig Cameron Robert J. Danay B.J. Wray Counsel for the Reference Amicus: George K. Macintosh, Q.C. Ludmila B. Herbst Tim A. Dickson Counsel for the Interested Persons: Beyond Borders: Ensuring Global Justice for David Matas Children: British Columbia Civil Liberties Association: Monique Pongracic-Speier British Columbia Teachers‟ Federation: Robyn P.M. Trask Canadian Association for Free Expression: Douglas H. Christie Canadian Coalition for the Rights of Children and Brent B. Olthuis the David Asper Centre for Constitutional Rights: Cheryl L. Milne Stephanie McHugh Canadian Polyamory Advocacy Assoc.: John G. Ince As Agent Christian Legal Fellowship: Gerald D. Chipeur, Q.C. Oleh W. Ilnyckyj Jill W. Wilkie Phebe Chan Ruth Ross, as Agent James Marion Oler and the Fundamentalist Robert V. Wickett Church of Jesus Christ of Latter Day Saints: Matthew G. Siren Andrew W.T. Scarth REAL Women of Canada: Jonathan Baker Stop Polygamy in Canada: Brian M. Samuels Robert J.C. Deane Kieran A.G. Bridge Jennifer W. Chan West Coast Legal Education and Janet Winteringham, Q.C. Action Fund: Deanne Gaffar Kasari J. Govender Place and Dates of Trial: Vancouver, B.C. November 22-26, 30, 2010 December 1, 2, 7-9, 13, 15, 16, 2010 January 5-7, 10-13, 17-20, 25-28, February 7-9, March 28-31, April 1, 4, 11-13, 15, 2011 Place and Date of Judgment: Vancouver, B.C. November 23, 2011 Table of Contents Paragraph Range I. INTRODUCTION [1] - [15] II. COURSE OF PROCEEDINGS [16] - [44] A. The Reference Questions [16] - [17] B. The Participants [18] - [25] C. The Evidence [26] - [32] D. Webcast of Final Submissions [33] - [44] III. EVIDENTIARY ISSUES [45] - [127] A. Factors Justifying a Liberal Approach to Admissibility in a Trial Reference [46] - [58] 1. The Importance of Evidence in Charter Litigation [47] - [51] 2. The Potential of a Trial Reference [52] - [58] B. Legislative Facts and Judicial Notice [59] - [70] 1. Legislative and Adjudicative Facts [60] - [62] 2. Judicial Notice [63] - [70] C. Expert Evidence [71] - [103] 1. Angela Campbell [77] - [103] a) Preconditions to Admissibility [80] - [88] b) Cost-Benefit Analysis [89] - [103] D. Lay Witnesses [104] - [105] E. The Brandeis Brief [106] - [127] 1. Canadian Use of Brandeis Brief Materials [109] - [121] 2. Use of Materials in the Brandeis Brief [122] - [127] IV. POSITIONS OF THE PARTIES [128] - [133] V. THE EVIDENCE [134] - [851] A. Terminology [135] - [145] B. The Historical Context [146] - [233] 1. The Emergence of Modern Monogamy [147] - [167] 2. Philosophical Dimensions of Western Monogamy [168] - [233] a) Classical Foundations [170] - [179] b) Biblical Foundations of Monogamy [180] - [187] c) Early Christian Teachings [188] - [193] d) The Medieval Views on Monogamy and Polygamy [194] - [202] e) Protestant Views of Monogamy and Polygamy [203] - [206] f) The Enlightenment [207] - [217] g) The Common Law Inheritance [218] - [227] h) Polygamy Linked to Harms [228] - [233] C. Polygamy Globally [234] - [336] 1. Islam [238] - [255] a) Polygyny in the Qur‟an [242] - [249] b) Muslim State Practice [250] - [255] 2. Mormonism [256] - [336] a) Brief History of the Mormon Church [258] - [305] i. Plural Marriage [264] - [277] ii. Criminalization of Polygamy [278] - [305] b) Mormon Fundamentalism [306] - [333] i. The FLDS [316] - [333] c) Polygamy in American Constitutional Law [334] - [336] D. Polygamy in Canada [337] - [467] 1. The History of Polygamy in Canada [337] - [380] a) First Nations Polygamy [341] - [346] b) Mormon Polygamy [347] - [356] c) Criminalization of Polygamy [357] - [359] d) First Nations and Mormon Polygamy After Criminalization [360] - [380] 2. Bountiful [381] - [422] a) Police Investigations Relating to Bountiful [393] - [422] 3. Muslim Community [423] - [429] 4. Polyamory [430] - [460] 5. Wicca [461] - [467] E. Changing Family Demographics in Canada [468] - [481] F. Alleged Harms of Polygamy [482] - [793] 1. Evolutionary Psychology [493] - [576] a) Dr. Henrich [498] - [539] i. Polygyny‟s Creation of a Pool of Unmarried Low-Status Men [507] - [517] ii. Polygyny‟s Effects on Male Parental Investment [518] - [522] iii. Polygyny, Age of marriage, the Age Gap and Gender Equality [523] - [533] iv. More Speculative Predictions [534] - [539] b) Dr. Shackelford [540] - [553] c) Will Polygamy Spread in Canada? [554] - [576] 2. Literature Review [577] - [608] 3. Statistical Analysis [609] - [640] 4. Polygamy in Contemporary North America [641] - [745] a) Polygamy in The United States [645] - [701] i. Fundamentalist Mormons [645] - [691] ii. Muslim Community [692] - [701] b) Polygamy in Canada [702] - [745] i. Bountiful [702] - [744] ii. Muslim Community [745] - [745] 5. Stereotyping Adherents of Minority Religious Groups [746] - [758] 6. Position of the Challengers [759] - [778] 7. Summary of Apprehended Harms [779] - [793] G. Canada‟s International Obligations [794] - [851] 1. Canada‟s Obligations under International Treaties [800] - [840] a) Statements by International Treaty Bodies [804] - [832] i. CEDAW [813] - [816] ii. ICCPR [817] - [820] iii. CRC [821] - [826] iv. ICESCR [827] - [832] b) Arguable Limitations on a State‟s Ability to Criminalize Polygamy [833] - [840] 2. Customary International Law [841] - [843] 3. Comparative Law [844] - [851] VI. PURPOSE AND INTERPRETATION OF SECTION 293 [852] - [1042] A. Purpose of Section 293 [854] - [904] 1. Legislative History of Section 293 [854] - [877] 2. Conclusion on Purpose of Section 293 [878] - [904] B. Interpretation of s. 293 [905] - [1042] 1. Positions of the Parties [905] - [968] 2. Conclusion on Interpretation of s. 293 [969] - [1042] VII. THE CHARTER [1043] - [1357] A. Freedom of Religion [1048] - [1098] 1. Positions of the Parties [1049] - [1082] a) Purpose [1052] - [1060] b) Effect [1061] - [1082] 2. Conclusion [1083] - [1098] B. Freedom of Expression [1099] - [1105] 1. Positions of the Parties [1099] - [1102] 2. Conclusion [1103] - [1105] C. Freedom of Association [1106] - [1127] 1. Positions of the Parties [1106] - [1123] 2. Conclusion [1124] - [1127] D. Liberty and Security of the Person [1128] - [1226] 1. Positions of the Parties [1128] - [1176] a) Interests at Stake [1130] - [1138] i. Liberty [1130] - [1134] ii. Security of the Person [1135] - [1138] b) Principles of Fundamental Justice [1139] - [1176] i. Overbreadth [1142] - [1148] ii. Arbitrariness [1149] - [1156] iii. Gross Disproportionality [1157] - [1165] iv. Consent [1166] - [1173] v. Vagueness [1174] - [1176] 2. Conclusion [1177] - [1226] E. Equality [1227] - [1270] 1. Positions of the Parties [1227] - [1258] a) On the ground of religion [1230] - [1235] b) On the ground of marital status [1236] - [1258] 2. Conclusion [1259] - [1270] F. Section 1 [1271] - [1357] 1. Positions of the Parties [1276] - [1328] a) Pressing and Substantial Objective [1278] - [1283] b) Proportionality [1284] - [1328] i. Rational Connection [1284] - [1298] ii. Minimum Impairment [1299] - [1305] iii. Proportionality of Effects [1306] - [1328] 2. Conclusion [1329] - [1357] a) Section 2(a) [1330] - [1352] b) Section 7 [1353] - [1357] VIII. DISPOSITION [1358] - [1367] 1. Is Section 293 of the Criminal Code of Canada consistent with the [1359] - [1362] Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent? 2. What are the necessary elements of the offence in s. 293 of the Criminal [1363] - [1367] Code of Canada? Without limiting this question, does s. 293 require that the polygamy or conjugal union in question involved a minor or occurred in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence? Page Range APPENDIX “A” [336 - 357] I. INTRODUCTION [1] By s. 293 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, (initially in 1890 and periodically since then in successive revisions to the Code), Parliament has prohibited the practice of polygamy. British Columbia asks this Court to declare whether this prohibition is consistent with the freedoms guaranteed to all Canadians by the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 [Charter]. [2] Mr. Justice Binnie, in extra-judicial comments (Kirk Makin, “An Insider‟s Glimpse at a Court in Transition”, The Globe and Mail, 24 September 2011), has suggested that the direction of any constitutional inquiry depends much upon how the good advocate, the good judge, the good appellate panel (and so on) characterizes the essential issue before the Court. Here, the Attorney General for British Columbia has said in opening that the case against polygamy is all about harm. Absent harm, that party accepted that s. 293 would not survive scrutiny under the Charter. [3] The challengers, led by the Amicus Curiae, counter (primarily) that this case is about a wholly unacceptable intrusion by the State into the most basic of rights guaranteed by the Charter - the freedom to practice one‟s religion, and to associate in family units with those whom one chooses. [4] Which characterization shoulders the burden of persuasion here? As Binnie J. said, the answer largely dictates the direction of the analysis. [5] I have concluded that this case is essentially about harm; more specifically, Parliament‟s reasoned apprehension of harm arising out of the practice of polygamy.
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