No. $097767 Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF: ‘THE CONSTITUTIONAL QUESTION ACT, R.S.B.C. 1996, 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 ORDER IN COUNCIL NO. 353 DATED OCTOBER 22, 2009 CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THE CRIMINAL CODE OF CANADA, R.S.C., 1985, C. C-46 OPENING STATEMENT BY THE FLDS REGARDING SECTION 1 OF THE CHARTER INTRODUCTION 1, We have had the opportunity to review, in draft, the opening statement to be tendered by the Amicus on Section 1 of the Charter. We adopt it and will not repeat it. 2. In this opening we prefer to focus on the particular role to be played by the FLDS in the Oakes analysis in respect of Section 1 of the Charter. 3. The FLDS is well aware that its practices, history and culture constitute virtually the entire focus of the Attorneys and affiliated interested parties in their analysis of the harms alleged to flow from polygamy. In this regard the AGBC is forthright and direct in stating his position that Section 293 is addressed only to polygyny, and only where such polygyny is sanctioned by some authority and binding on any of its participants. In other words, it only applies in Bountiful. Ccurasantoosit:euT Oocumen¥D-1888054. That definition crafted as it were, to jam the square peg of section 293 into the round hole of section 1 the Charter, focuses the defence of section 293 upon the practices of the FLDS in Bountiful. For the Attomeys, it must be this way, of course, because if section 295 is merely a crime of status, prohibiting the status of three or more persons living in a conjugal association while behaving in a manner that is otherwise perfectly lawful, then it will fail Charter scrutiny for all of the reasons detailed by the Amicus in his opening. 5. The FLDS rejects the definition of section 293 proposed by the Attomeys and it has structured its tender of evidence based upon it submission regarding the proper definition of polygamy contained in section 293. 6. The FLDS does not appear at this reference to defend its religious practices generally or its culture, Members of the FLDS know full well that their beliefs and practices are neither understood nor accepted by the majority of Canadians, Fundamental Mormonism, that is the form of Mormanism practised by the followers of Joseph Smith since the 1830's has existed outside the mainstream of North American culture since its establishment. 7. Members of the FLDS also know that the patriarchal structure of the FLDS, its strict codes of conduct, its communal organisation and most especially its belief in the covenant of marriage which dictates, in part, that partners in marriage are decided, not initially by the participants themselves, but rather by a Prophet who receives revelation from God, are beliefs rejected and indeed reviled by many Canadians. Hence the “problem of Bountiful”, as commonly referred to. 8. Members of the FLDS know and accept that if this reference is to be concerned with the defence and justification of those beliefs, and that if they are to be compelled to adopt the standards and beliefs of other Canadians, their way of life and their beliefs will be taken from them. 9. The FLDS has participated in this reference, not to defend patriarchy and arranged marriage which exist elsewhere in society, but to challenge the prohibition on plural marriage contained in section 293 as it applies to them. ‘The essence of that challenge is that members of the FLDS freely chose to consent to these practices because of their beliefs. For those former curaaantcosiL curt dooumenD:188806 4members who have had contrary experiences and are witnesses in this reference, the FLDS does not seek to justify or explain their mistreatment, If abuses have occurred the FLDS acknowledges that such abuses should be i vestigated, and if nevessary, prosecuted as they are or should be in any other community. 10. In raising this challenge the FLDS will submit that the experiences of some are not the experiences of all, and that section 293, quite apart from its fundamental overbreadth, lacks the nuance to deal with the actual harms that may arise in some polygamous relationships. It will be the case for the FLDS that this lack of nuance is fatal to section 293 because it is addressed to the status of the married persons, not the actions of some married persons and to the harms themselves. 11. On the issue of harm, the FLDS notes that there is very little evidence from the Attorneys respecting the Canadian experience, rather the majority of evidence comes from Americans who have never set foot in Canada, Having said this, and accepting that persons living in polygamous relationships in Canada may have suffered harms in the context of their family structure, the FLDS asserts that these harms are not rationally connected to polygamy as we have defined it, any more than harms that arise in monogamous relationships are rationally connected to practice of monogamy. ANTICIPATED EVIDENCE 12. The FLDS has, at the request of the AGBC, undertaken something of a headcount to give some perspective on the size of the Bountiful community and its make up. That headcount discloses that the community is comprised of roughly $50 people. Of those, there are 183 people over the age of 18. Of those 183 people 115 are married. Of the 68 people over the age of 18 who are unmarried, 13 are single parents or widows. The remainder have not been previously married. 13, Of the married persons, 60 live in monogamy and 55 live in polygamy. 14, ere are 22 persons currently aged 16 or 17. None are married. CTSs2RODBIL;GLT Document 188805 1ie 15, ‘The FLDS has tendered 16 affidavits intended to address the issue of social harms from its perspective. Of the 16 witnesses 9 are, or were, residents of Bountiful. The others are Americans, 16, Of the 16 witnesses, 11 are women and 5 are men. This imbalance was intentional as the FLDS considered it important for the court to hear primarily from women members of the FLDS who, it is alleged, are victims of polygamy. Some of the witnesses were married at 16 or 17 and they will give the Court their perspective on marriage at that age, looking back on their lives. You will not hear the voices of victimized automatons but rather reflective, intelligent women some of whom agree that marriage ought not to occur before the age of majority and who support the change in church policy made several years ago to provide that the FLDS will not sanction any marriage for a person younger than the age provided for by law in the jurisdiction where they reside 17. The Court will also hear from unmarried, adult women and one unmarried adult man who will speak of their belief in the marriage covenant. 18. The Court will hear from one man living in a polygamous relationship who will speak about the difficulty and pain that he went through as a father when one of his sons left the community. He will address the assertion that young men are cast away by their families because of the “cruel arithmetic” of polygamy and that the religious belief in polygamy trumps the normal human experience of dealing with a troubled child. 19. You will also hear from a successful, well adjusted man who made the decision to leave the Bountiful community and to make his way in main stream society. He will speak about the reasons he left the community, his continuing contact with his family and his observations about the assertion that men are driven from the community. 20. Of the 16 witnesses, 12 have elected to seek the protection of the anonymity order. You will hear from some of those witnesses that the exclusion from mainstream society originating in the criminal prohibition of polygamy has affected them deeply, in part because of their fear of accessing medical or other assistance and in part because of the cost of continually funding legal battles, The Court will hear that when problems, including abuse, arise in the community (as it Ceb7392nt-coe:GLTBocimantD:188005 1will in any community) it is very difficult for members of the community to access help because they fear that to do so could result in a jail term if evidence of polygamy is disclosed. 21, This theme, that the criminalization of polygamy drives its participants to separate themselves from mainstream society arises throughout the evidence, Members of the FLDS testify that they do not want to live as pariahs, separate and apart from society. It will be a neat question arising on this reference whether the harms alleged to be associated with polygamy are exacerbated by its criminalization and whether decriminalization would eventually result in an ameliorization of these harms as victims feel able to access the law, social services and mainstream society without fear that they themselves, or their loved ones, will be incarcerated because of their marital status. 22, At the conclusion of the case for the FLDS, it is anticipated that the Court will be left with a more nuanced and more realistic view of life in Bountiful than that proposed by the Attorneys. That nuanced view, it is anticipated, will ground the submissions of the FLDS that section 293, properly interpreted, cannot withstand Charter scrutiny and cannot be saved by —_ (ROBERT V. WICKETD) section | ALL OF WHICH IS RESPEC Vancouver, BC November 15, 2010 (cbr 392M 008: GLTDociment0:108805 1