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1
Discussion
1 November 25, 2010
2 Vancouver, B.C.
3
4 (DAY 4)5 (PROCEEDINGS COMMENCED)
67 THE CLERK: Order in court. In the Supreme Court of
8 British Columbia at Vancouver, on this 25th day of
9 Vancouver 2010, recalling the matter concerning
10 the constitutionality of section 293 of the11 Criminal Code, My Lord.
12 MR. JONES: My Lord, just before my friends continue13 with their opening submissions they've kindly
14 granted me permission to just address the question15 of scheduling of our application for a limited
16 publication ban. My friends for the CPAA and the
17 FLDS have indicated that they will together be an
18 hour and a half or less which should take us to19 the noon break.
20 They are the last of the opening statements.21 Our application, as you know, went on notice to
22 the media only yesterday, however the Vancouver
23 Sun, who is the only publisher so far of the
24 videos, has been on notice for more days, and Mr.25 Dan Burnett, I've been in contact with him at Owen
26 Bird, who's representing the Sun in this matter,27 and he's indicated that he will be prepared to
28 argue the matter this afternoon, any time from 229 o'clock onwards.
30 So my proposal --
31 THE COURT: What about the other media?
32 MR. JONES: We've received no response.33 THE COURT: When were they served?
34 MR. JONES: Yesterday morning, My Lord, after your35 direction.
36 THE COURT: Well, what is the time, I still haven't37 looked at the Practice Directive, how much notice
38 does it require?39 MR. JONES: The Practice Directive calls for two clear
40 days. Our application doesn't fall, we don't
41 believe, strictly within the terms of the Practice42 Directive.43 My proposal would be to argue it with the
44 Vancouver Sun in opposition and have the nature of
45 the order crafted so as to permit any other group
46 that does want to make broader use of the videos47 to apply to the court to do so.
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Opening statement by Mr. Wickett
1 THE COURT: So who was served with it?
2 MR. JONES: I'm afraid I don't know, My Lord. It was
3 through the process that the court has
4 established.5 THE COURT: Okay. Well, I'm a bit reluctant to hear it
6 without other parties having an opportunity to be7 heard on it, so perhaps you can find out who else
8 was served. They really should be entitled to a
9 bit more notice. Why don't you at least find out
10 who else was served.11 MR. JONES: I'll do that, My lord.
12 THE COURT: And we'll revisit it. I can't say now if13 it's going to go at 2.
14 MR. JONES: That's fine, My Lord. Would you grant me15 leave to absent myself for the balance of the
16 morning and I'll see if I can check that?
17 THE COURT: Sure.
18 MR. JONES: Thank you.19 THE COURT: How long will it take, Mr. Jones?
20 MR. JONES: We've estimated one hour, My Lord, and I21 think that's realistic.
22 THE COURT: Thank you. Mr. Wickett.
23 MR. WICKETT: Sorry to see that Mr. Jones is absenting
24 himself from the most important submissions of the25 day. That's my view and I'm sticking with it.
26 My Lord, we filed two openings and I'll27 address myself to those in a moment.
28 It is obvious from all that of you've heard so29 far from counsel in this case that the focus of
30 the evidence in this case is the FLDS and the
31 community of Bountiful in particular. Evidence
32 about the beliefs, practices, of those who adhere33 to this faith constitute, dare I say, virtually
34 the entire evidentiary filing in the case, in35 particular regarding the harms of polygamy.
36 In that regard it appears that the context37 within which section 293 will be adjudged is
38 largely within the context of fundamental39 Mormonism. While the FLDS might wish that that
40 was not so, it is the reality of this case that
41 they are compelled to deal with it.42 In my respectful submission, that43 adjudication with respect to section 293 must
44 commence with the definition of the offence
45 described in 293, so that there is some framework
46 to distinguish between the evidence that you will47 hear properly related to the offence itself, and
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Opening statement by Mr. Wickett
1 the evidence that I will be suggesting is merely
2 related to this -- the unpopular religious beliefs
3 of this tiny religious community in Creston,
4 British Columbia.5 Now, in terms of my opening, My Lord, I
6 largely adopt the opening of my friend Mr.7 Macintosh and I don't intend to repeat what he has
8 said in opening respecting the particular Charter
9 rights at issue here.
10 I'd prefer in my opening to focus on the11 definition of the offence, in particular, and then
12 I'd like to turn My Lord to the circumstances of13 the FLDS in this reference.
14 Turning to the first of my openings, if I15 could ask you to turn to the second page, I'm
16 going to commence at paragraph 7.
17 It will, My Lord, be the case for the FLDS
18 that section 293, correctly interpreted, requires19 the crown to prove to the criminal standard that
20 the accused agreed to live in a marital or a21 marital-like relationship with two or more people
22 at one time, and that the accused believed this
23 agreement to be binding upon his or her conscience
24 for some period of time. The actus reus of the25 offence is in my submission the making of the
26 agreement, and the mens rea is the intent to make27 the agreement and the subjective belief that such
28 an agreement is binding on the accused for some29 period of time.
30 I've cited a case there that was decided by
31 the Court of Queens Bench in Quebec, one year
32 after the section was promulgated. And I feel33 very badly that I'm going to be the only counsel
34 that is actually referring to our case books, My35 Lord, and I do thank my friends from the federal
36 attorney for putting them together. Does Your37 Lordship have these?
38 THE COURT: Yes, I do.39 MR. WICKETT: It's just a brief reading, My Lord,
40 volume 2.
41 THE COURT: M'mm-hmm.42 MR. WICKETT: It's the last case in that volume, is at43 tab 30. I thought I'd refer to this, My Lord, in
44 opening because its instructive in my respectful
45 view with respect to the thinking of at least the
46 courts at the time the section was promulgated.47 This was really a test case in a way because the
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Opening statement by Mr. Wickett
1 accused Labrie appeared before the Court of Queens
2 Bench on a charge of unlawfully living and
3 cohabiting in a conjugal union with a certain
4 person, to wit, Rosa Ada Martin, she Rosa Ada5 Martin then being married to another person. And
6 in the beginning of that second full paragraph His7 Lordship said this:
8
9 The facts of cohabitation, that each of them
10 were married to other partners is fully11 proved. However, counsel for the defence
12 claimed that there was no offence for which13 Labrie in law could be convicted.
1415 That's paragraph D in section 5 and he quotes the
16 section.
17
18 ... applied only to Mormons and the like who19 have gone through a marriage of some sort, a
20 conjugal union, before cohabiting with one21 another. On the other hand the crown said
22 that the law applied to everybody and anybody
23 who then married, cohabited or agreed or
24 consented to do so with another person25 married person as Labrie had done.
26 In my charge to the jury I told them27 that the point raised was quite a new one,
28 the law having come into force last year only29 and suffered some considerable doubt from the
30 wording of the statue and what had been the
31 intention of the legislature in framing, and
32 if they brought in a verdict of guilty I33 would most certainly reserve the point for
34 consideration for the full bench of the Court35 of Queens Bench. They did bring in a verdict
36 of guilty, but I did not sentence the man.37 The point now reserved is whether or not
38 under the new statute referred to Labrie39 committed the misdemeanor he had been found
40 guilty of.
4142 Continuing the section then as cited as it then43 was worded, My Lord, and you've heard in other
44 submissions that at time there was a particular
45 reference to Mormons in the statute. Continuing
46 to the next page:47
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Opening statement by Mr. Wickett
1 St. Pierre QC, for the defendant's
2 submissions were, he contended that the
3 object of the statute was to repress
4 Mormonism. There must be a conjugal union,5 some form of ceremony joining the parties.
6 The object of the law was not to prevent7 immorality. It was taken from the Edmonds
8 act.
9
10 And I pause here to say that was the statute of11 the United States that dealt with polygamy in
12 Utah.13
14 It was taken from the Edmonds act. It was15 not intended to prevent mere concubinage, but
16 a union of persons of opposite sex which the
17 parties suppose to be binding on them. The
18 words 'conjugal union' imply there must be19 some tie between the parties. Dorian,
20 chancery judge, giving judgment of the court21 held that there was no offence shown. It was
22 apparent from the statute that there must be
23 some form of contract between the parties
24 which they might suppose to be binding on25 them but which the law was intended to
26 prohibit.27
28 And it went on from there to recite the formal29 judgment acquitting the accused.
30 I read that to you, My Lord, because it is
31 illustrative of the definition which I will be
32 asserting is the underpinning -- as the definition33 which ought to be adopted by this court.
34 Return to my opening at paragraph 9. Section35 293 prohibits an agreement that is binding on the
36 conscience of the accused and enduring for some37 period of time. It does not prohibit the
38 behaviour that constitutes the relationship that39 is the subject matter of the agreement. It does
40 not prohibit the behaviour of living with more
41 than one person, or having sex with more than one42 person, or having children with more than one43 person, or indeed loving more than one person.
44 For the members of the FLDS engaging in this
45 behaviour, section 293 strikes at the motivation
46 and agreed consequences flowing from such47 behaviour.
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Opening statement by Mr. Wickett
1 What I mean by that, My Lord, is the section
2 strikes at the motivation for engaging in the
3 behaviour and the consequences that the parties
4 themselves have agreed will flow from engaging in5 such behaviour, that is the contract they've made
6 with each other.7 Further, it will be submitted on behalf of the
8 FLDS that a criminal offence cannot be defined in
9 a way that depends on the actions of a third
10 party. I pause here to say, and I want to digress11 slightly from my opening, I'm referring in
12 particular here to the definition offered by the13 Attorney General of British Columbia. I pick on
14 that one in particular because, as Mr. Macintosh15 said, it's an informative interpretation because
16 the Attorney General of British Columbia is the
17 enforcer of the law, but I fully recognize that
18 other parties have other definitions.19 And what I say, I want to expand on this
20 slightly, is that whatever the definition, the21 definition offered by the Provincial attorney in
22 my respectful submission will not and cannot be
23 sustained as it contemplates as an element of the
24 actus reus of the offence, action by a third25 party. And I say it is offensive.
26 What I mean by that, My Lord, the original --27 I want to just step back in time on this
28 reference, originally Mr. Jones delivered an29 opening statement or opening position, if I can
30 put it that way, I don't know if you have it, I
31 brought along just the one page I want to refer
32 to.33 THE COURT: Sure.
34 MR. WICKETT: And I've just photocopied the one page,35 if you turn to the second page, paragraph 7, the
36 Provincial attorney provided you with a definition37 at that time that was as follows:
3839 Section 293 prohibits marriages or
40 marriage-like relationships involving more
41 than two persons that purport to be, A,42 sanctioned by an authority having power or43 influence over the participants and, B,
44 binding on any of the participants.
45
46 The definition that my learned friend Mr. Jones47 provided to you on behalf of the Provincial
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Opening statement by Mr. Wickett
1 attorney on Tuesday was slightly different. He
2 said, at page 22 of his opening, paragraph 61,
3 that polygamy is a polygynous marriage that
4 purports to be, A, sanctioned by some authority5 and, B, binding on any of the participants.
6 Now, returning to the original statement, in7 fairness to my friend, in paragraph 8 of his
8 statement he says that the prohibition was and is
9 addressed to the overwhelmingly dominant form of
10 polygamy being polygyny. But the definition has11 changed. The two changes in the definition over
12 time are as follows: Firstly, the definition has13 changed so that polygamy is polygyny, not all
14 "marriage or marriage-like relationships" and15 number 2, it must be sanctioned, according to my
16 friend, by some authority, but not necessarily one
17 having powerful influence over the parties. He's
18 taken those words out of the definition.19 I mention this now not to comment on these
20 differences particularly. My learned friend and21 the Attorney General is perfectly entitled to
22 change his view as to the interpretation of the
23 section, but rather to focus on what has remained
24 constant in the definition proposed by the25 Provincial attorney, and that is that the marriage
26 must purport to be sanctioned by an authority.27 And that element of the definition, it will be the
28 case for the FLDS that that element of the29 definition, if accepted by the court, imports into
30 the actus reus of the offence action by a third
31 party unrelated to a voluntary act of the accused.
32 And it will be our submission that whatever33 the definition settled on by Your Lordship with
34 respect to this offence, it cannot be defined by35 reference to an actus reus that includes as an
36 element of it an act of a third party unrelated to37 that of the accused thereby violating one of the
38 most basic principles of criminal law, which is39 that a criminal offence is a voluntary act of the
40 accused.
41 With that, My Lord, if I could ask you to turn42 to our second opening statement, stamped November43 15th.
44 THE COURT: Thank you.
45 MR. WICKETT: Second page, My Lord, paragraph 4. I'm
46 just picking up on the point I've just made. The47 definition proposed by the Provincial attorney
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Opening statement by Mr. Wickett
1 crafted, as it were, to jam the square peg of
2 section 293 into the Charter of Rights focuses the
3 defence of section 293 upon the practices of the
4 FLDS in Bountiful. For the attorneys, it must be5 this way, of course, because if section 293 is
6 merely a crime of status, which is what I7 anticipate our submissions will be, prohibiting
8 the status of three or more persons living in
9 conjugal association while behaving in a manner
10 that is otherwise perfectly lawful, then it will11 fail Charter scrutiny for all of the reasons
12 detailed by my learned friend Mr. Macintosh in his13 opening.
14 Paragraph 6, the FLDS does not appear at this15 reference to defend its religious practices
16 generally or its culture. Members of the FLDS
17 know full well that their beliefs and practices
18 are neither understood, or to the extent that they19 are understood, accepted by the majority of
20 Canadians. Fundamental Mormonism, that is, the21 form of Mormonism practised by the followers of
22 Joseph Smith since the 1830s, has existed outside
23 the mainstream of North American culture since its
24 inception.25 Members of the FLDS also know that the
26 patriarchal structure of the FLDS, its strict27 unbending codes of conduct, personal conduct, its
28 communal organization, and most especially, its29 members -- its members' beliefs in the covenant of
30 marriage which dictates in part that partners in
31 marriage are decided not initially by the
32 participants themselves, but rather by a prophet33 who receives revelation from god, are beliefs
34 rejected, indeed scorned and reviled by many35 Canadians. Hence the problem of Bountiful, as
36 some commentators have framed it.37 Members of the FLDS know and accept that if
38 this reference is to be concerned with the defence39 and justification of those beliefs and if they are
40 to be compelled to adopt the standards and beliefs
41 of other Canadians, their way of life and their42 beliefs will be taken from them. But this43 reference is not concerned with a law banning
44 fundamental Mormonism, which, if even possible,
45 might well be the happy answer to some of the
46 parties in this reference.47 The FLDS has participated in this reference
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Opening statement by Mr. Wickett
1 not to defend a patriarchy and arranged marriage
2 that exist elsewhere in society, but to challenge
3 the prohibition on plural marriage contained in
4 section 293 as it applies to them. The essence of5 that challenge is that members of the FLDS freely
6 choose to consent to these practices because of7 their beliefs.
8 And I pause there to say, My Lord, that you
9 -- I ask and I'm sure that you will be alive to
10 the evidence that you will hear in this case,11 tending to the view and the suggestion that the
12 consent of women in particular and men, for that13 matter, to these practices must somehow be
14 disregarded because it offends a secular analysis15 of rights, and that consent to these practices is
16 inherently degrading to women, as many counsel
17 here have suggested. That is from a perspective
18 of others, it is not from the perspective of19 people who Practice Directive and believe in this
20 faith.21 I'm thinking particularly of the evidence
22 you're going to hear from one of the crown's
23 experts, who I anticipate is going to be saying,
24 in essence, members of the FLDS are not capable of25 giving consent even as adults, because of their
26 upbringing they're, in essence, brain damaged and27 their consent is meaningless.
28 For those former members of the FLDS who have29 had contrary experiences within the FLDS, and
30 you're going to hear from them, they are witnesses
31 proffered by the crown, witnesses are going to say
32 they were forced into marriage and suffered other33 abuses. The FLDS not does not seek to justify or
34 explain their mistreatment. If those abuses have35 occurred or if abuses have occurred, the FLDS
36 acknowledges that such abuses should be37 investigated and if necessary prosecuted, as they
38 are or should be in any community.39 In raising this challenge, the FLDS will
40 submit that the experiences of some are not the
41 experiences of all. And section 293, quite apart42 from its fundamental overbreadth, lacks the nuance43 to deal with the actual harms that may arise in
44 some polygamous relationships. It will be the
45 case for the FLDS that this lack of nuance is
46 fatal to section 293, because it is addressed to47 the status of married persons, not the actions of
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Opening statement by Mr. Wickett
1 married persons and to the harms themselves.
2 On the issue of harm, the FLDS notes that
3 there's very little evidence from the attorneys
4 respecting the Canadian experience, rather, the5 majority of the evidence comes from Americans
6 who've never set foot in Canada.7 Having said this and accepting that persons
8 living in polygamous relationships in the FLDS in
9 Canada have suffered harms in the context of their
10 family structure, the FLDS asserts that those11 harms are not rationally connected to polygamy,
12 which is the issue in this case as we have defined13 it, any more than the harms that arise in
14 monogamous relationships are rationally connected15 to the Practice Directive of monogamy.
16 I turn now, My Lord, to the anticipated
17 evidence of the FLDS. The FLDS has, at the
18 request of the Attorney General of British19 Columbia, undertaken what I say is something of a
20 head count, literally, because the community is so21 small, to give some perspective on the size of the
22 Bountiful community.
23 And I pause here to say that -- please make a
24 note, My Lord, that what I'm about to tell you25 relates to the FLDS in Bountiful, not to Mr.
26 Blackmore, nor his followers. Mr. Macintosh made27 some reference to this in his opening and I
28 recorded it in my opening here so you'd have the29 numbers. That head count discloses that the
30 community is comprised of roughly 550 people. Of
31 those, there are 183 people over the age of 18; of
32 those 183, 115 are married. Of the 68 people over33 the age of 18 who are unmarried, 13 were formally
34 married and are either single parents or widows.35 The remainder have not been previously married.
36 Of the married persons, that is 115 people, 6037 live in monogamy and 55 live in polygamous
38 relationships. There are 22 people in the39 community aged 16 or 17. None are married.
40 The FLDS has tendered 16 affidavits intended
41 to address the issue of social harms from its42 perspective. Of those 16, 9 are or were residents43 of Bountiful. The others are Americans.
44 I pause here to say and I'll come to this at
45 the end when we do our tender of evidence, but I'm
46 not at this stage tendering the affidavits of Oler47 and Palmer, that will be reserved to another time.
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Opening statement by Mr. Wickett
1 So what I'm about to say, please keep in mind, My
2 Lord, that those two particular affidavits are not
3 being tendered at this time.
4 Of the 16 witnesses, 11 are women and 5 are5 men, and 2 of the five men are Oler and Palmer.
6 This imbalance was intentional as the FLDS7 considered it important for the court to hear
8 primarily from women members of the FLDS, who it
9 is alleged are victims of polygamy. Some of the
10 witnesses were married at 16 or 17 and they will11 give the court their perspective, it is
12 anticipated, on marriage at that age, looking back13 at their lives.
14 You will not hear the voices, it is15 anticipated, of victimized automatons, but rather,
16 reflective, intelligent women, some whom agree
17 that marriage ought not to occur before the age of
18 majority -- when I mean [sic] that I mean 18 --19 and who support the change in the church policy
20 from a few years ago that provides that the FLDS21 will not sanction any marriage to a person younger
22 than the age provided for by law in the
23 jurisdiction within which they reside. And as
24 I've said, in Canada it's 18.25 The court will also hear from unmarried, adult
26 women and one unmarried adult man, who will speak27 about their belief in the covenant of marriage as
28 part of their religious faith. The court will29 hear from one man living in a polygamous
30 relationship who will speak about the difficulty
31 and pain that he went through as a father when one
32 of his sons left the community. He will address33 the assertion that young men are cast away by
34 their families because of the cruel arithmetic of35 polygamy and that the religious belief in polygamy
36 somehow trumps the normal experience that will be37 experienced by any parent when dealing with a
38 troubled child.39 You will hear from a successful, well-
40 adjusted man who made the decision to leave the
41 Bountiful community and to make his way in42 mainstream society. He will speak about the43 reasons he left the community, his continuing
44 contact with his family in Bountiful and his
45 observations about the assertion that men are
46 driven from the community.47 Of the 16 witnesses, 12 have elected to seek
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Opening statement by Mr. Wickett
1 the protection of the anonymity order that Your
2 Lordship has made in this case.
3 You will hear from some of those witnesses
4 that the exclusion from mainstream society5 originating in the criminal prohibition on
6 polygamy has effected them deeply, in part because7 of their fear of accessing medical or other
8 assistance, and in part because of the cost of
9 continually funding legal problems.
10 The court will hear that when problems11 including abuse arise in the community, as it will
12 in any community, it is very difficult for members13 of the community to access help because they fear
14 that to do so will result in a jail term if15 evidence of polygamy is disclosed.
16 And I should say, My Lord, it really isn't so
17 much even the jail term, but rather the fear that
18 their family will be ripped apart, that is really19 the true driving fear.
20 This theme that the criminalization of21 polygamy drives its participants to separate
22 themselves from mainstream society arises
23 throughout the evidence. Members of the FLDS will
24 testify that they do not want to live as pariahs,25 separate and apart from society.
26 It will be a neat question arising on this27 reference, in my respectful submission, whether
28 the harms associated with polygamy are exacerbated29 by its criminalization and whether
30 decriminalization, not approval or authorization,
31 but decriminalization would eventually result in
32 an ameliorization of these harms as victims of33 abuse feel able to access the law, social
34 services, mainstream society, without fear that35 they themselves or their love ones will be
36 incarcerated or have their families ripped apart,37 because of their marital status, solely because of
38 their marital status.39 At the conclusion of the case for the FLDS, I
40 anticipate, My Lord, that you will be left with a
41 more nuanced, realistic view of life in Bountiful42 than that proposed by the Attorneys. That nuanced43 view, it is anticipated, will ground the
44 submissions of the FLDS that this section 293,
45 properly interpreted, cannot withstand Charter
46 scrutiny and cannot be saved by section 1.47 That is my opening, My Lord. I suppose I
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Opening statement by Mr. Wickett
1 should be marking exhibits.
2 THE COURT: Thank you.
3 MR. WICKETT: I apologize to all counsel here. I've
4 made copies but apparently not enough. If you5 don't get one now we'll have one sent out.
6 THE CLERK: The next exhibit number is 77, My Lord.7 MR. WICKETT: The first affidavit, My Lord, is that of
8 Professor William John Walsh, an expert in Mormon
9 theology.
10 THE CLERK: Exhibit 77.11
12 EXHIBIT 77: Affidavit number 1 of Dr. William13 John Walsh filed July 17, 2010
1415 MR. WICKETT: The next is the affidavit of anonymous
16 witness number 1 filed October 20th, 2010.
17 THE CLERK: Exhibit 78, My Lord.
1819 EXHIBIT 78: Affidavit number 1 of anonymous
20 witness number 1 filed October 20, 201021
22 MR. WICKETT: The next is that of anonymous witness
23 number 2 filed also October 20th, 2010.
24 THE CLERK: Exhibit 79, My Lord.25
26 EXHIBIT 79: Affidavit number 1 of anonymous27 witness number 2 filed also October 20, 2010
2829 MR. WICKETT: Next is the affidavit of witness number 3
30 filed October 20th, 2010.
31 THE CLERK: Exhibit 80, My Lord.
3233 EXHIBIT 80: Affidavit number 1 of anonymous
34 witness number 3 filed October 20, 201035
36 MR. WICKETT: Next, anonymous witness number 4.37 THE CLERK: Exhibit number 81, My Lord.
3839 EXHIBIT 81: Affidavit number 1 of anonymous
40 witness number 4 filed October 20, 2010
4142 MR. WICKETT: Next, anonymous witness number 5.43 THE CLERK: Exhibit 82, My Lord.
44
45 EXHIBIT 82: Affidavit number 1 of anonymous
46 witness number 5 filed October 20, 201047
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Opening statement by Mr. Wickett
1 MR. WICKETT: Next, anonymous witness number 6.
2 THE CLERK: Exhibit 83, My Lord.
3
4 EXHIBIT 83: Affidavit number 1 of anonymous5 witness number 6 filed October 20, 2010
67 MR. WICKETT: Next, anonymous witness number 7.
8 THE CLERK: Exhibit 84, My Lord.
9
10 EXHIBIT 84: Affidavit of anonymous witness number11 7 filed October 20, 2010
1213 MR. WICKETT: Next, My Lord, are two affidavits from
14 witness number 8, and I don't know whether Your15 Lordship would prefer those to be marked
16 collectively as one exhibit or individually.
17 THE COURT: Probably individually.
18 MR. WICKETT: Thank you, My Lord. That would be19 exhibit 85 and 86.
20 THE CLERK: Exhibits 85 and 86, My Lord.21
22 EXHIBIT 85: Affidavit number 1 of anonymous
23 witness number 8
24 EXHIBIT 86: Affidavit number 2 of anonymous25 witness number 8
2627 MR. WICKETT: There is no witness number 9, My Lord, so
28 the next exhibit is anonymous witness number 10.29 THE CLERK: Exhibit 87, My Lord.
30
31 EXHIBIT 87: Affidavit number 1 of anonymous
32 witness number 10 filed October 26, 201033
34 MR. WICKETT: Next is anonymous witness number 11.35 THE CLERK: Exhibit 88, My Lord.
3637 EXHIBIT 88: Affidavit number 1 of anonymous
38 witness number 11 filed October 20, 201039
40 MR. WICKETT: Next, anonymous witness number 12.
41 THE CLERK: Exhibit 89, My Lord.4243 EXHIBIT 89: Affidavit number 1 of anonymous
44 witness number 12, filed October 19, 2010
45
46 MR. WICKETT: And finally with respect to anonymous47 witness number 13.
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Opening statement by Mr. Ince
1 THE CLERK: Exhibit 90, My Lord.
2
3 EXHIBIT 90: Affidavit number 1 of anonymous
4 witness number 13, filed October 19, 20105
6 MR. WICKETT: Next the affidavit of Christine Wayman7 filed October 19th.
8 THE CLERK: Exhibit 91, My Lord.
9
10 EXHIBIT 91: Affidavit of Christine Wayman filed11 October 19, 2010
1213 MR. WICKETT: And finally the affidavit of Jennifer
14 Zitting.15 THE CLERK: Exhibit 92, My Lord.
16
17 EXHIBIT 92: Affidavit of Jennifer Zitting filed
18 October 20, 201019
20 MR. WICKETT: And just to finish on the order, Mr. Oler21 and Mr. Palmer, My Lord, there are discussions
22 that are occurring and I'll advise the court as
23 soon as we resolve that and, if not, there may be
24 an application of some sort and we'll deal with25 that in due course.
26 THE COURT: Thank you, Mr. Wickett.27 MR. WICKETT: Thank you, My Lord.
28 THE COURT: Mr. Ince?29 MR. INCE: Thank you, My Lord. I'm appearing for the
30 CPAA. And I'm going to propose to confine my
31 comments to the secondary targets of the law as
32 proposed by the Attorneys General.33 The doctrine of reading down and the
34 constitutional doctrine allows courts and35 Attorneys General or anyone to suggest an
36 interpretation of a statute that can be much37 narrower than the wording of the statute reads,
38 and that allows for a surgical deployment of the39 law.
40 And our submission is that the Attorneys
41 General in this case have decided not to do that42 and, to use the words of my friend Mr. Jones, are43 using a blanket approach. And we believe that
44 blanket approach is contrary to the Charter and
45 indeed to the deepest moral values of Canadians.
46 So we adopt the submissions of the Amicus. We47 believe the legislation is fundamentally flawed
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Opening statement by Mr. Ince
1 for the reasons the Amicus has provided, but I am
2 not going to repeat those arguments because they
3 apply generally and we are focussing, as I
4 mentioned, specifically on how the law targets5 people beyond the primary focus of the
6 fundamentalist communities.7 So what is that primary target of virtually
8 all of the evidence in this case? And it is
9 traditional, and we'll define that in a moment,
10 patriarchal polygamy. And it's patriarchal in the11 sense that, as Mr. Wickett just mentioned, it's
12 believed it's overtly and explicitly that men have13 a position of dominance in the culture and that
14 women are inferior and, very specifically, that15 only men have the right to multiple partners.
16 And in a patriarchal community it's not just
17 the asymmetry and the choice of multiple partners,
18 but it's men are dominant in all spheres of life19 and the example is Bountiful. And because of that
20 gender A symmetry and because of that old21 fashioned premodern patriarchal community, that
22 has attracted an enormous attention of activists,
23 journalists and so on, as to that there is a
24 serious social problem here. And they might well25 be right.
26 But, unfortunately, my friends, the AGs, have27 not restricted their attack to those communities.
28 And this is obviously a deliberate, conscious move29 on their part. They have decided to attack a
30 large number of people, perhaps dwarfing the
31 number of people in the traditional patriarchal
32 community, we'll be adducing evidence as to the33 size of that community of the non-patriarchal,
34 which hereafter I'll call the polyamorous35 community, much, much larger than the evidence
36 indicates that the traditional patriarchal37 communities are. And what are the key
38 distinctions between that polyamorous community39 and the patriarchal community as mentioned? First
40 of all, is a belief in conjugal freedom, a belief
41 that both men and women have the freedom to choose42 how many partners they want, the sexual43 orientation of the partners they want, how long
44 they want to be with their partners. There is no
45 gender disparity. Secondly, there is no religious
46 tradition in the polyamorous community. Polyamory47 is a very modern institution. It's probably
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Opening statement by Mr. Ince
1 existed for 30 or 40 years. It has no religious
2 tradition. And the third difference is that
3 polyamory occurs outside segregated communities.
4 It's fully mainstream in every respect, except for5 a choice of more than one romantic partner.
6 As far as we have been able to show, and there7 is no evidence anywhere in the thousands of pages
8 filed, that polyamory is attracting any social
9 stigma. There have been no prosecutions against
10 polyamorists. So we were surprised then that when11 the Attorneys General could have taken a surgical
12 approach and excluded polyamorists, they have13 explicitly advocated for a blanket approach.
14 So how did the AGs get there? And I propose15 to quickly go through the Attorney General of
16 British Columbia's submissions. A very
17 interesting and creative idea, that the law should
18 apply only to the forms of multiple conjugality19 that were known when the law was created, and in
20 my statement I've called that the known historical21 form theory. And there's some sense to that. And
22 so the Attorney General of British Columbia says,
23 well, that would mean because homosexual pairings
24 or groups were not known in that era, the law25 today couldn't cover homosexuals, and because
26 there were no relationships where there were one27 female and many men, it couldn't apply to that
28 either.29 And the only known examples of multiple
30 partner conjugality were those involving gender
31 inequality, which, as he emphasizes in his
32 submissions, is at the heart of the prohibition,33 gender inequality. And, similarly, the only known
34 examples of multi-partner conjugality in that era35 would have a long religious tradition.
36 I'm submitting, My Lord, that this historical37 approach would be a surgical approach to the law.
38 It's fairly narrowly defining the targets of the39 prohibition. Whether or not that can pass Charter
40 muster, I'm making no submissions on, but it would
41 definitely be targeted. But for reasons we don't42 understand, having stated that approach, the43 Attorney General of BC then seems to abandon it
44 and instead of requiring that the relationship
45 exhibit gender inequality or that it come from a
46 known historical tradition, he advocates a blanket47 approach, such that the only criteria are multiple
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Opening statement by Mr. Ince
1 partners and a single male. And we just don't
2 understand the logic, how you can use the
3 historical approach to exclude single female
4 relationships and exclude homosexual5 relationships, but not exclude gender equal
6 relationships and post-modern structures that have7 no long religious tradition.
8 So what my friend is arguing is that a family,
9 let's call them a family of three lawyers, living
10 in West Vancouver, a man and two women, powerful,11 educated, vital players in society, my friend is
12 advocating that they are engaged in criminal13 conduct simply because they are cohabiting in that
14 configuration. And right beside them live three15 lawyers, a female and two men, in all respects
16 equal, and they're not criminals. Now, this, in
17 my submission, inherently lacks common sense.
18 And as we are going to submit, there is no19 evidence to support such a distinction.
20 Turning to the Attorney General of Canada,21 their only limiting criteria on the scope of
22 section 293 is some sort of formalization. And
23 they use, in our submission, highly tortured
24 reasoning to import the provisions of section25 293(1)B into A, but even aside from that, as long
26 as that formalization is met, the Attorney General27 of Canada would criminalize gay relationships,
28 would criminalize egalitarian relationships, all29 they have to have is some degree of formalization,
30 perhaps a party.
31 So, again, we imagine three -- two families
32 in the Commercial Drive area now, each consisting33 of three lesbians. One of the families says,
34 let's have a party, and they throw a party and35 invite all their friends and in front of their
36 friends they say, we'd like to celebrate our love37 and mark it in some public way, and simply for
38 having done that they are, in the eyes of the39 Attorney General of Canada, criminals.
40 Yet, the family living next door to them are
41 not criminals, because they didn't go through such42 a party.43 So this is deeply disturbing to the
44 polyamorous community, that lawmakers at both the
45 provincial and the federal level are advocating a
46 position that would render them criminals simply47 for living together in a multiparty, loving
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Opening statement by Mr. Ince
1 relationship.
2 Now, the criminal law here has Draconian
3 scope, as several people have noted, that this is
4 not just prohibiting or controlling rights flowing5 from a relationship, such as saying that if you're
6 in a three-party family you can't adopt children,7 or you can't have pension rights. This is much
8 more Draconian than that. This is applying to the
9 relationship itself. This is a law that could
10 break up loving families. It is as radical an11 intrusion into the private sphere of life as can
12 be imagined.13 So on what possible basis of -- can this be
14 justified? Where is the evidence of harm? I'll15 deal first with the personal harm evidence, the
16 harm pertaining to the members of these
17 relationships.
18 All of the evidence that is being adduced has19 derived from a patriarchal family structure. In
20 all of the thousands pages of evidence we have21 pored through looking, where is the research
22 showing polyamorous families are in any way
23 causing harm to their members? We find nothing.
24 So there's some allegation of somehow social25 harm, very marketplace ideas. And the idea -- one
26 idea has been that there's an innate force in men,27 this is the evolutionary theory that we're going
28 to hear lots of, that men are somehow different29 than women in this core area, and that if we allow
30 them freedom in conjugal choices that they will
31 ultimately choose polygamy and have a patriarchal
32 structure. We point out that these inherent33 essentialist arguments, talking about genes, have
34 been used before to very oppressive ends, they35 were used to disenfranchise women, they were used
36 to criminalize gays, gays were doing things37 against nature, and we now know that that was just
38 an embodiment of prejudice rather than any genuine39 assertion of harm. Evolutionary positions are
40 resorted to, in our submission, when a party lacks
41 a real case.42 And, similarly, the arguments about somehow43 monogamy and democracy are inherently linked and
44 essential, completely speculative, as their own
45 expert indicates.
46 So we ask why, when polyamory has existed for47 over 30 years, where there are thousands of people
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Opening statement by Mr. Ince
1 practising it in Canada and the United States, and
2 by some estimates in the United States hundreds of
3 thousands of people, although not in a cohabiting
4 situation. There are academic experts, and we5 will tender studies of those people who have
6 inquired into polyamory, why is there no evidence7 here? Why have the crown, who are seeking to
8 criminalize this relationship, not conducted a
9 single study, not put forward an interview of a
10 disaffected polyamorous family, not done a survey?11 They are proposing to criminalize a whole group of
12 people without having done any research.13 And we -- when we ask ourselves why that
14 wasn't done, we answer it with the idea that had15 that research been done it would directly refute
16 the evolutionary theories that the Attorney
17 General is relying on. There is no cruel
18 arithmetic in the polyamory community.19 So there are no harms that have been
20 identified pertaining to polyamory, either21 personally or socially, but there are benefits,
22 and these benefits aren't speculative, they're
23 real. And they're the personal benefits of the
24 families who have filed affidavits in this case,25 of how polyamory is core to their personal
26 expression, their meaning in life.27 But there are important social benefits that
28 apply beyond just the polyamorists, and it's in29 incubating a new form of relationship. Our
30 society is based on an openness to
31 experimentation. And polyamorists are an
32 interesting subset of people who are experimenting33 in relationships, and in that experiment -- in
34 that experiment they are, for example,35 investigating jealously, jealousy, a negative
36 emotion, and polyamorists are exploring37 alternatives for jealously. They've even created
38 a word called compersion, which is the opposite of39 jealously, which is the joy one takes in having a
40 partner have another relationship.
41 My friends have not discussed, on the Attorney42 General's side, have not discussed the harms of43 their policy. Obviously, breaking up families,
44 what an enormous harm this is, to suggest that the
45 many, many people in Canada who are involved in
46 multiple conjugality situations, must -- are47 criminals, and have the risk of having the forces
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Opening statement by Mr. Ince
1 of the state break up their family.
2 Now, my friend the Attorney General of BC
3 talks about, that we have to have a blanket
4 approach, maybe there isn't any harms to5 polyamory, maybe there's no personal harms,
6 there's no social harms, but we have to catch7 these in our blanket approach because we can't
8 distinguish them from the patriarchal polygamists.
9 Imagine the problems at the border. How is a
10 border guard to distinguish between polyamorists11 on the one hand and patriarchal polygamists on the
12 other? And the answer is very simple, it's very,13 very easy to distinguish between patriarchal
14 polygamists and polyamorists by very simple15 questions: Do you believe that men and women have
16 equal rights in conjugal freedom? The people in
17 Bountiful would say no. Very, very simply, no, we
18 believe men have that freedom, they can have no19 wife, one wife one or many wives. But women don't
20 have that choice. Another question: Do you21 believe, are your beliefs based on a long
22 religious tradition? Yes. The FLDS has been
23 around since the 1830s and it's based on a
24 patriarchal polygamist tradition that goes back25 mentioned in the Bible for thousands of years,
26 same with the Muslim traditions. Polyamorists27 would say no, we're just inventing this as we go
28 along.29 But imagine the problems that the blanket
30 approach gives at the border or with police
31 investigation. So imagine three people, say, a
32 man and two women show up at the border and put33 the same address. They are cohabiting together.
34 So do we have criminals here or not? This is a35 male-female-female configuration. By drawing a
36 blanket that includes polyamorists, now mere37 roommates, the border guards have to distinguish
38 between roommates and polyamorists, they have to39 start asking them invasive questions like, do you
40 sleep together? A blanket approach causes
41 enormous enforcement problems that a surgical42 approach wouldn't43 So in conclusion, My Lord, my friends the
44 Attorneys General have argued that there's moral
45 issues at stake in this case, and we agree. And
46 we think the advocacy by the Attorneys General to47 explicitly criminalize people who are living in
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Opening statement by Mr. Ince
1 loving and productive families, completely in the
2 mainstream, who completely embrace the idea of
3 gender equality and personal freedom for all
4 partners, that this violates the long Canadian5 tradition of a respect for diversity, a respect
6 for social experimentation, a respect for7 individual freedom in the sanctity of their home,
8 and we believe that in advocating the breaking up
9 or the criminalization of loving families, the
10 Attorneys General have lost their moral compass.11 Those are my submissions, My Lord. And I'll
12 do the documents.13 THE COURT: Yes, thank you.
14 MR. INCE: So the date shown is the date the affidavits15 were filed, not the date they were sworn.
16 THE COURT: Thank you.
17 MR. INCE: Next number is?
18 THE CLERK: The next number is exhibit 93, My Lord.19 MR. INCE: So the exhibit -- the affidavit of John
20 Robert Bashinski would be number 93.21 THE CLERK: Exhibit 93, My Lord.
22
23 EXHIBIT 93: Affidavit of John Robert Bashinski
24 filed June 3, 201025
26 MR. INCE: And of Carol Jean Cosco, 94.27 THE CLERK: Exhibit 94, My Lord.
2829 EXHIBIT 94: Affidavit of Carol Jean Cosco filed
30 July 3, 2010
31
32 MR. INCE: Karen Ann Detillieux, 95.33 THE CLERK: Exhibit 95, My Lord.
3435 EXHIBIT 95: Affidavit of Karen Ann Detillieux
36 filed June 3, 201037
38 MR. INCE: Affidavit of Zoe Anne Elizabeth Duff.39 THE CLERK: Exhibit 96, My Lord.
40
41 EXHIBIT 96: Affidavit of Zoe Anne Elizabeth Duff42 filed June 3, 201043
44 MR. INCE: Affidavit of Forrest Glen Maridas, 97.
45 THE CLERK: Exhibit 97, My Lord.
4647 EXHIBIT 97: Affidavit of Forrest Glen Maridas
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Discussion
1 filed June 3, 2010
2
3 MR. INCE: Affidavit of Sarah Katherine White.
4 THE CLERK: Exhibit 98, My Lord.5
6 EXHIBIT 98: Affidavit of Sarah Katherine7 Elizabeth White filed June 3, 2010
8
9 MR. INCE: And Carol Jean Cosco, 99.
10 THE CLERK: Exhibit 99, My Lord.11
12 EXHIBIT 99: Affidavit of Carol Jean Cosco filed13 September 29, 2010
1415 THE COURT: Thank you. So that concludes the openings?
16 MR. JONES: My Lord, perhaps I can bring you up to
17 speed on our application discussions.
18 I've now spoken again with Mr. Burnett and I19 can advise that although he says he will still be
20 prepared to go today, he would prefer to go21 tomorrow if that is an option. We, of course,
22 weren't going to sit tomorrow. I'm not sure if
23 Your Lordship has made other plans, but that's
24 certainly an option for us.25 THE COURT: Yes, I more or less have planned on
26 attending to administrative duties, which are27 relatively significant.
28 MR. JONES: I see. Mr. Burnett indicates that -- well,29 I'll read you exactly what he put, if I may. He
30 gave me the numbers of two other lawyers who he
31 thought together would represent all of the
32 interested media, at least those who have copies33 of the thumb drive. I haven't yet called them,
34 but I will.35 He says he's also seeking instructions from
36 his other media clients, but I have to say notice37 yesterday and a call to them right now for an
38 application today is really pushing it. I expect39 it'll be for David and Michael's clients as well.
40 I'm always intending to raise a res judicata
41 argument, which takes a bit more time to properly42 put together than the usual ban arguments that I43 am familiar with. Accordingly, please convey my
44 request to the court to do this tomorrow. If the
45 chief justice instead chooses to do it today, I
46 will be there for the Sun, but the reality is the47 other media will have had insufficient notice, in
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Discussion
1 my view.
2 So I'm in your hands, My Lord. I can pass
3 you up a copy of the publication ban notification
4 e-mail and this is, as your Lordship knows, a5 service provided by the courts through the
6 website. The media who are interested in the7 courts of British Columbia subscribe to this
8 service. And so this is the notice that went out
9 at I believe it's 12:37 yesterday indicating that
10 it would be heard at 11 o'clock today or as soon11 thereafter as possible.
12 So I'm in your hands with respect to timing,13 My Lord. Obviously, we would like to get this on
14 as quickly as possible. The videos are being15 played on the Vancouver Sun's website.
16 THE COURT: What have we got scheduled for Monday?
17 MR. JONES: We have Angela Campbell, who's a witness
18 who simply can't be moved.19 THE COURT: Right.
20 MR. JONES: Might I suggest that if we do do it Monday,21 would it be possible to start at 9?
22 THE COURT: It would be but -- I believe it would be,
23 but I don't believe an hour is enough for this.
24 Let's do it at 10 o'clock tomorrow morning and25 that depends. Let's meet at 2 today and discuss
26 whether it can be heard at 10 o'clock tomorrow27 morning, but with these other individuals.
28 MR. JONES: Thank you, My Lord, I'll make those calls.29 THE COURT: Thank you.
30 MR. MACINTOSH: My Lord, I just have a small point and
31 it's to do with my own appearance here from time
32 to time, because as Amicus, I was giving thought33 to whether I'm more than just counsel, but as a
34 practical matter, My Lord, I'm treating myself35 somewhat simply as counsel, there's a duality
36 there, and I've made efforts, arrangements that I37 intend to be here virtually the whole of the
38 hearing. There's going to be moments when I can't39 and that's with the court's leave.
40 THE COURT: Yes, of course, thank you.
41 THE CLERK: Order in court. Court is adjourned till 242 p.m.43
44 (NOON RECESS)
45
46 THE CLERK: Order in court.47 MR. JONES: Thank you, My Lord. An update, I've
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DiscussionSubmissions by Mr. Burnett
1 confirmed with my office that there were four
2 media outlets that received the video affidavits.
3 As it turns out, at least three and possibly all
4 four are represented by Mr. Burnett who is here5 today. I'll let him introduce himself, but I
6 understand his preference is not to proceed today,7 as I said earlier, and that he is available
8 tomorrow.
9 THE COURT: Okay. Mr. Burnett?
10 MR. BURNETT: My Lord, thank you. I'm Daniel Burnett,11 B-u-r-n-e-t-t, at this point representing the
12 Vancouver Sun, Canadian Broadcasting Corporation,13 CTV Television and Global Television.
14 I can advise the court that I've had some15 communication and may well be retained by the
16 Toronto Star, as well as the Globe and Mail. The
17 first of those -- this is all happening in the
18 last 60 minutes or so, because of the timing of19 this application.
20 My request to the court is twofold: One is21 the matter not be heard this afternoon, although I
22 could be in a position to argue it tomorrow, at
23 the court's timing. I appreciate that there are
24 some scheduling difficulties you have to deal25 with, My Lord.
26 The primary reason for that is both so that I27 can get together proper argument. I've argued
28 these issues before, but some of the arguments29 made by my friend are rather novel. In addition
30 to that, one of the things I need to get together
31 for the court is an affidavit which will set forth
32 the degree of publicity on this very issue that33 has been courted by the person, the person we
34 believe is objecting -- who's asking for the ban,35 and that will be most relevant to whether there
36 truly is a basis for -- that will meet the test37 for a ban. And, secondly, there are -- because of
38 the fact there are other media who are still in39 the process of determining what their position is,
40 some of whom have the videos, some who will be
41 seeking them, and therefore it's not fair to say42 just those who have it will have an interest in43 this matter. And, as I say, I can be in a
44 position to argue it as early as tomorrow morning.
45 THE COURT: How long do you think it will take?
46 MR. BURNETT: I'm not a long-winded person on these47 things, I expect that I would be approximately
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Submissions by Mr. BurnettSubmissions by Mr. Jones
1 half an hour, my argument.
2 THE COURT: Okay.
3 MR. BURNETT: And the second thing that I request, that
4 I've been discussing with my friend is, as he has5 expressed reluctance to reveal to me who the
6 anonymous individual is referred to in the7 affidavit of Leah Greathead that the application
8 is based upon. In my submission that's critical
9 for us to be able to meet the case, and certainly
10 it's critical for us to be able to be specific in11 our response, so we can tell the court what sort
12 of publicity the person's courted. By definition13 all four have been public, have done so, so it's
14 going to be one degree or another, but if it is,15 they've been on Time and Dr. Phil and everything
16 else. So my friend is reluctant to provide that
17 to me and I'd ask the court to direct him to do
18 so. I don't need it to be done in any public way,19 I need to be able to respond to a rather unusual
20 affidavit that is based upon the request of one21 person who I'm denied the knowledge of their
22 identity.
23 THE COURT: Anything else?
24 MR. BURNETT: No, that's it, My Lord.25 THE COURT: Well, first of all, I'll hear it tomorrow
26 morning at 10 o'clock. Mr. Jones, can I hear you27 on the issue of the name?
28 MR. JONES: Yes. Thank you, My Lord, yes. And let me29 apologize, My Lord. It is in part because I did
30 not give this matter the attention that I should
31 have when I had it, that I put the court in a
32 difficult position with respect to scheduling, so33 I apologize for that.
34 I have been, as my friend says, reluctant to35 release the name of the affiant in question. It's
36 our position that the videotaping of witnesses and37 the broadcasting of videotaped testimony cannot
38 pivot on an assessment of whether the witness has39 courted publicity. And, in fact, we would say
40 just the opposite, that the most public persons
41 who will be the most attractive of prurient42 interest in the public and therefore potentially43 by the media should have the highest degrees of
44 protection, not the lowest degrees of protection.
45 And so our position basically is that there
46 will be no -- there must be no -- there is no47 constitutional right to broadcast the evidence
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Submissions by Mr. Jones
1 from live court or from a video affidavit based
2 simply on someone's prior public profile.
3 The interest of the witness is the same
4 interest of the court is the same [sic] and we5 could not get into, on an application, as we had
6 earlier this week to videotaped testimony, we7 couldn't have that assessed on the basis of the
8 notoriety of the witnesses, so I do object to
9 making that name known, particularly for the
10 purpose that my friend intends to use it but, of11 course, we're subject to your direction.
12 THE COURT: Well, I can't say at this point whether in13 fact there's no constitutional right to consider
14 -- or in weighing the merits of the position of15 the journalists, whether it's not relevant to know
16 who the complainer is, so it seems to me that I'm
17 going to direct that Mr. Jones provide the name to
18 Mr. Burnett off the record, and I'll hear from the19 parties tomorrow at 10 a.m.
20 MR. JONES: One more thing, if I may. We had some21 discussion yesterday about the development of the
22 library, I wanted to bring you up to speed on that
23 because it might benefit from your assistance.
24 With respect to the possibility for a physical25 library, we've been speaking with the sheriffs,
26 and there are rooms available and we could find a27 room here. I understand Your Lordship may have
28 some influence in that regard. With respect to29 the internet access, I was pleased to find out
30 that the Canadian Polyamory Advocacy Association
31 actually has a cloud site set up at Google Docs
32 where they have put every document so far in this33 matter, fortunately not the video affidavits, but
34 everything else is on this site already.35 I've spoken with my friend Mr. Ince and we're
36 quite confident that our technical people, working37 together, can make that a fairly useful resource.
38 My question to you would be therefore, if we39 can accomplish that, would you still feel the
40 necessity for the physical room? And the physical
41 room would have in it the two things, I suppose it42 would have perhaps a facility for viewing the43 video affidavits, and it would also have the
44 Brandeis brief materials which, for copyright
45 reasons, I don't think can be posted on the
46 internet. So I'm not sure if Your Lordship would47 want to do both?
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Certification
1 THE COURT: It will be ideal if we could do both.
2 MR. JONES: Very well, My Lord. We'll see that that
3 happens.
4 THE COURT: Good. Thank you very much.5 THE CLERK: Order in court. Court is adjourned till
6 Friday, November 26th, 2010 at 10 a.m.7
8 (PROCEEDINGS ADJOURNED AT 2:13 P.M.)
9
10 I, Marina Hopkins, Official Reporter in11 the Province of British Columbia, Canada,
12 BCSRA No. 547, do hereby certify:13 That the proceedings were taken down by
14 me in shorthand at the time and place herein15 set forth and thereafter transcribed, and the
16 same is a true and correct and complete
17 transcript of said proceedings to the best of
18 my skill and ability.19 IN WITNESS WHEREOF, I have hereunto
20 subscribed my name and seal this 3rd day of21 December, 2010.
22
23
2425 ______________________
26 Marina Hopkins, RCR27 Official Reporter
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