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Preliminary matters
1 December 9, 2010
2 Vancouver, B.C.
3
4 (DAY 11)
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 9th day of
9 December 2010, calling the matter concerning the
10 constitutionality of section 293 of the Criminal
11 Code, My Lord.
12 MR. JONES: Good morning, My Lord. Perhaps just before
13 I get going, an update on our housekeeping matter.
14 We have the library now fully established in the
15 room outside and we'll be posting -- the materials
16 are in there, and we'll also be posting the
17 schedule of witnesses as it evolves in that room
18 as well.
19 THE COURT: Excellent. Thank you.
20 MR. JONES: My Lord, the first witness, the only
21 witness today and perhaps for part or all of
22 tomorrow, is Dr. Joseph Henrich. I am going to
23 spend a few minutes longer on Dr. Henrich's
24 qualifications and his CV than I ordinarily would,
25 and I just wanted to explain why that's necessary.
26 Dr. Henrich is the Attorney's principal
27 expert on the causes of polygamy and its
28 consequences, and in order to set these things
29 out, his testimony is going to have to move
30 quickly over a vast amount of territory in a
31 number of scientific disciplines. And in order
32 for him to do that with some authority and
33 credibility, it's necessary for me to establish
34 not only the breadth of his expertise but also
35 something of its depth, so I'm asking a little bit
36 of forbearance in the court in that regard.
37 Perhaps we could have Dr. Henrich sworn.
38
39 JOSEPH HENRICH, a witness
40 called by the AGBC,
41 affirmed.
42
43 THE CLERK: Please state your full name and spell your
44 last name for the record.
45 THE WITNESS: Joseph Henrich. My last name,
46 H-e-n-r-i-c-h.
47
2
Joseph Henrich (for AGBC)
In chief on qualifications by Mr. Jones
1 ask.
2 Q Thanks. As we go through perhaps your
3 publications we can elaborate a little on this and
4 the interdisciplinary nature of this field.
5 Now, prior to your arrival -- I'm just at
6 paragraph 2 of your CV. Prior to your arrival at
7 UBC in 2006, you were a faculty member at Emory
8 University?
9 A That's right, yes.
10 Q And that was, at least by the end of it, a tenured
11 position as well?
12 A Right. As I was being recruited to UBC for the
13 Canada research chair, I was granted tenure but
14 never actually took up the position to be an
15 associate.
16 Q I see. And you had a position in the University
17 of Michigan's department of organizational
18 behaviour?
19 A Yes, organizational behaviour's in the business
20 school at the University of Michigan. I had a
21 post doc -- yes, so I was a visiting assistant
22 professor my first job out of graduate school.
23 Q And your time at the Institute for Advanced Study,
24 Wissenschaftskolleg in Berlin.
25 A Right. So in my second year at the University of
26 Michigan, I was invited to be a fellow at the
27 Institute for Advanced study in Berlin, and the
28 German is Wissenschaftskolleg.
29 Q Okay. And then in paragraph 3 it notes that
30 you've received a number of awards for your
31 interdisciplinary work, most recently from UBC,
32 the Killam Research Prize?
33 A That's right.
34 Q The Human Behaviour and Evolution Society's award
35 for distinguished scientific contribution?
36 A Yeah.
37 Q 2009. And the President of the United States
38 award for early career scientists and engineers?
39 A Yeah, it's actually called the Presidential Early
40 Career Award for Scientists and Engineers.
41 Q And that was in 2004?
42 A Right.
43 Q And did you go to Washington, DC, to receive that?
44 A Yeah. I actually received that at the
45 White House.
46 Q In the White House. Perhaps I can now go to your
47 CV, Dr. Henrich, which is at tab A to your first
4
Joseph Henrich (for AGBC)
In chief on qualifications by Mr. Jones
1 A Correct.
2 Q And they didn't have a -- they didn't have that as
3 a discipline, if I can put it that way, prior to
4 this?
5 A Right. So you know one of the things about
6 academic departments is you have sort of your
7 anthropology, your economics and your psychology,
8 and my approach to all this says that we shouldn't
9 have those disciplines. We should create these
10 integrated programs so we use tools from different
11 disciplines.
12 Q I see. And is there an umbrella description that
13 would embrace these discipline -- I mean, is this
14 sociology broadly?
15 A There's no good term that you're accustomed to
16 hearing. I mean, so I use these collections of
17 terms like culture, cognition and evolution.
18 Q I see.
19 A But it speaks to sociological questions the same
20 way it speaks to economic questions.
21 Q I see. Okay. And we've touched a little on your
22 work experience. You've been at UBC since 2006
23 initially as tier two and now as a tier one Canada
24 research chair. Prior to that you were at Emory
25 University and you've done the other fellowships
26 and visiting professorships that we've discussed
27 in others. I notice -- looks like prior to your
28 academic career you were actually a rocket
29 scientist of some description?
30 A So my first job out of undergraduate was as an
31 engineer with GEF Aerospace and Martin Marietta
32 where I worked for two years. Satellite
33 operations.
34 Q I see. And now we turn to publications and
35 forthcoming contributions, and I appreciate that
36 this list is somewhat outdated now. It's only
37 from this summer and you've had some more
38 publications since this time, but I wanted to go
39 through it. Are all of the publications that
40 we're going to be talking about peer reviewed?
41 A You mean everything on here, or?
42 Q Yes, I suppose. Yeah. Is this a list of your
43 peer -- are all these journals?
44 A Let's see. So books, peer reviewed, edited by
45 peer review, all the journal articles are peer
46 reviewed. So there's a page 6 or page 7, the
47 official number.
6
Joseph Henrich (for AGBC)
In chief on qualifications by Mr. Jones
1 Q Right.
2 A That's re-publication of earlier journal articles.
3 Q Right.
4 A And that's where someone is trying to make an
5 edited volume of classic papers and they republish
6 one of your earlier ones, so there's no peer
7 review.
8 Q I understand.
9 A And the book chapters -- book chapters are
10 technically reviewed, but they're very rarely
11 rejected.
12 Q I see.
13 A So it's not a full ...
14 Q Okay. So perhaps we'll just pass over for the
15 moment the forthcoming journal articles and we'll
16 go to the published journal articles beginning at
17 page 5. And the first three struck me because the
18 only magazine I subscribe to is New Scientist
19 Magazine, and the WEIRD research that you've done
20 has featured in this magazine lately, hasn't it,
21 sir?
22 A Yes.
23 Q This is the English New Scientist?
24 A So they wrote an article -- a feature actually on
25 a paper that we published in the Behavioural and
26 Brain Sciences, and so we use the word "WEIRD" in
27 the title; I used the word WEIRD. WEIRD stands
28 for Western Educated Industrialized Rich
29 Democratic. And we use this term because we
30 wanted to characterize a particular group of
31 people who, when we looked at a large array of
32 different psychological studies from different
33 societies, always came out on the strange end of
34 the distribution. They were always sort of
35 outliers or different from other places. So one
36 of the -- the reason why this gets so much press
37 is because it's sort of saying westerners are
38 sociologically unusual compared to the rest of the
39 species.
40 Q I see, I see. So this writing that you've done in
41 the area, and perhaps we'll just go to numbers 56
42 and 7. I'll just read the titles starting at
43 number 7 and we're working up. The first one is
44 "Beyond WEIRD: Toward a broad-based behavioural
45 science" and that's in Behavioural and Brain
46 Sciences?
47 A Well, that was -- yeah. Right.
7
Joseph Henrich (for AGBC)
In chief on qualifications by Mr. Jones
1 transactions.
2 Q And the second one down, "The Evolution of
3 Innovation-Enhancing Institutions," same sort of
4 approach?
5 A Yes, yeah. So that -- the idea there is that
6 certain kinds of institutions favour the free flow
7 of information among people and that that's really
8 important for generating institutions. I mean --
9 sorry, for generating innovations. So we've
10 reviewed the literature, and if you look at where
11 new good ideas are born, they tend to be born from
12 the recombination of different ideas. And so to
13 do that, you have to have lots of interacting
14 bodies. And the more you get minds to interact
15 and share information, the faster your
16 interrelationships will grow.
17 Q And it looks like the next one is a little more
18 general, "A Cultural Species," and that was in a
19 book called Explaining Culture Scientifically?
20 A Right. That was just a general review for people
21 who weren't familiar with this line of work,
22 arguing that humans are unique in our reliance on
23 cultural learning, and that this means that you
24 have to use -- this changes how we think about how
25 evolution applies to humans.
26 Q And the next one is from an Oxford handbook of
27 evolutionary psychology -- from The Oxford
28 Handbook of Evolutionary Psychology and it's "The
29 Evolution of human cultural capacities and
30 cultural evolution." And is that an overview as
31 well?
32 A Which number?
33 Q Sorry, that's number 4. "Dual inheritance
34 theory." I'm sorry, I forgot the first part of
35 the title.
36 A Right. That's also an overview of how we can
37 integrate genetic evolution and cultural
38 evolution, and think about how they influence each
39 other.
40 Q I see, and that's an approach underlying exactly
41 what you're testifying to today; is that right?
42 A Exactly.
43 Q And another Oxford handbook -- sorry, the same
44 Oxford Handbook of Evolutionary Psychology you had
45 another chapter called "Modelling cultural
46 evolution."
47 A Right. That is an introduction to how to use
11
Joseph Henrich (for AGBC)
In chief on qualifications by Mr. Jones
1 to build there.
2 Q I see. And Chile, then, in 1997 and 2000. You
3 were in Mapuche, if I'm pronouncing that right, in
4 southern Chile?
5 A That's right. So they're I think the largest
6 southern American indigenous group. They live in
7 small subsistence farmhouse households scattered
8 through rural southern Chile.
9 Q And you were there for nine months on the first
10 trip and one month on the second?
11 A That's right.
12 Q And what question were you trying to answer there,
13 sir?
14 A Well, there I was trying to test -- I was kind of
15 going after economics in the sense, and so within
16 economics there's this idea that people are
17 rational actors and they weigh costs and benefits
18 between alternative decisions. And so what I was
19 able to show, that people don't actually have all
20 the information they would need to make this
21 calculation, they're missing -- so if you're
22 comparing two crops, do you plant wheat or barley,
23 the people -- the farmers don't know any facts
24 about barley, so they can't be making a cost
25 benefit decision because you need some facts.
26 They know a lot about wheat, which is what they
27 grow. And I was able to show they learn that by
28 cultural transmission, so it's not a rational
29 choice, it's cultural.
30 Q I see. So a topic would be the limits of economic
31 analysis?
32 A Yeah, or the origins of behavioural patterns,
33 things like -- I was focussing on economic
34 practices because I don't want to argue with
35 economists, but what crop you plant, what
36 fertilizer you use.
37 Q And then prior to that you did four trips to the
38 Peruvian Amazon, studying agricultural change and
39 decision-making, and those trips were two and a
40 half months, one month, two months and one month;
41 is that right?
42 A Right.
43 Q And what was -- that agricultural change and
44 decision-making was similar to what you've
45 mentioned to us?
46 A Economic decisions for sure. In the first three
47 months I was focussed on living and working in
13
Joseph Henrich (for AGBC)
In chief on qualifications by Mr. Jones
1 A Right.
2 Q And for The Proceedings of the National Academy of
3 Science?
4 A Right.
5 Q And The Proceedings of Royal Academy with respect
6 to biology?
7 A Yes.
8 Q Philosophical Transactions of the Royal Society?
9 A Right.
10 Q Behavioural and Brain Sciences and Current
11 Zoology; is all that right?
12 A Yeah.
13 Q And that's in the field of general science, and
14 then with respect to anthropology in particular,
15 I'll just read down the list. You were a reviewer
16 for Current Anthropology, American Antiquity,
17 Human Nature, Evolutionary Anthropology,
18 Behavioural Ecology and Sociobiology, Journal of
19 Theoretical Biology, Evolution and Human Behaviour
20 and Human Biology?
21 A That's right.
22 Q Then under economics you are a reviewer for the
23 American Economic Review, Econometrica, Economic
24 Journal, Journal of Economic and Organizational
25 Behaviour, Experimental Economics, Academy of
26 Management Journal, American Economics Journal,
27 Applied Economics.
28 A That's right.
29 Q And then with respect to psychology, the journals
30 are Cognition, Developmental Science,
31 Psychological Science, Trends in Cognitive
32 Science, Evolution of Communication. Did I get
33 those right?
34 A That's right.
35 Q Sociology and philosophy, you were a reviewer for
36 Rationality and Society and also for the European
37 Review of Philosophy?
38 A That's right.
39 Q And then there's a number of presses, three,
40 University of California Press, University of
41 Chicago Press, University of Michigan Press?
42 A Those are book reviews.
43 Q Book reviews. I see. And so you would be called
44 upon then to assess on a fairly deep level the
45 submissions to these journal -- these journals in
46 all of these disciplines?
47 A Yeah. Yeah. Of course I'm not -- you get these
15
Joseph Henrich (for AGBC)
In chief on qualifications by Mr. Jones
1
2 There is a shortage of eligible women to
3 marry in every polygynous society and this is
4 a primary factor responsible for the
5 intergenerational conflict in
6 Colorado City/Centennial Park. Senior males
7 are always on the marriage market and thus
8 compete with younger men for mates in a
9 limited pool of eligible women. In the 1960s
10 a policeman, without the approval of the
11 religious leadership, would threaten to
12 arrest unmarried males who did not leave the
13 community. The competition for mates is
14 acute. Young men know that if they do not
15 find a girlfriend before they have graduated
16 from high school, they probably never will
17 have one. Without a girlfriend, they will
18 leave the community to find a wife.
19
20 So, you know, I read this, I was amazed
21 actually that you could read this same kind of
22 thing in polygynous societies in African
23 ethnographies, for example, the same kind of
24 dynamics is taking place. So it suggests to me
25 that there's powerful social dynamics here. Okay.
26 Let's see here.
27 So, you know, one of the sort of objections
28 that you sometimes get is this -- the language
29 that we use here refers to women as resources and
30 whatnot and that's sort of, of course,
31 distasteful. But when you actually look at what
32 happens, it looks like it fits. So in -- so this
33 is again Jankowiak, so in this setting fathers
34 often exchange their daughters in order to marry
35 them. Men wanted to marry off their daughters
36 before they could decide to select from within
37 their age cohort. By the 1990s second ward
38 fathers began to negotiate marital exchanges, not
39 for themselves but for a favoured son or in some
40 case a grandson.
41 And then finally he writes about the first
42 ward. The prophet's age does not restrict
43 families from offering their daughters to him.
44 The reason why fathers give their daughters to the
45 prophet, often with the wife's encouragement, are
46 to gain prestige and to obtain material and
47 spiritual benefits.
56
Joseph Henrich (for AGBC)
In chief by Mr. Jones
1 monogamous men.
2 Q And these two effects that we discussed, the
3 social harms, child brides and excess males are
4 expected to occur regardless of whether there's
5 any of the harms to the participants themselves in
6 the polygyny?
7 A That's right.
8 Q And finally, Dr. Henrich, on this point, the idea
9 that polygamy will lead to institutions of
10 increased male control over women in society.
11 What's the strength of the evidence there in
12 summary?
13 A Well, we have the data showing that polygamy and
14 sex ratio relate to more male control, lower
15 things like literacy and we talked about the UNDP
16 gender equality index, and so by incentivizing
17 males to control women, will it create a kind of
18 cultural evolutionary pressure for institutions
19 that allow males to control women. So in lots of
20 polygynous societies, in New Guinea, for example,
21 you have sister exchange. This is basically where
22 groups of males have bargained that you get my
23 sister when we grow up and I get your sister. So
24 just a kind of example -- we saw the sort of
25 swapping that FLDS or Colorado City residents were
26 engaging in. You see institutions of this form in
27 New Guinea, for example.
28 Q Thank you, Dr. Henrich. Moving on in your second
29 expert report, it's principally addressed to two
30 things. One is a reply to Dr. Shackelford, but I
31 want to turn to the second aspect of it first,
32 which is the demographic analysis of the Bountiful
33 community and that's tab 2, My Lord, beginning at
34 page 10. But what we have at page 11 is the
35 demographic data of the FLDS side of the Bountiful
36 community that was provided by my friend
37 Mr. Wickett. And you have put this in a table and
38 provided something of an analysis of it. So this
39 is -- it's correct to say, isn't it, that this is
40 the only hard demographic numbers we have for any
41 polygamous society, polygamous community in North
42 America?
43 A Yeah, I think that's true. At least the only ones
44 we could find. I had a feeling there is more out
45 there, but I couldn't find them.
46 Q And that breakdown appears on this table and
47 perhaps I can just take you through it.
68
Joseph Henrich (for AGBC)
In chief by Mr. Jones
1 affidavit.
2 Q All right. And you will readily agree with me
3 that a great deal of your evidence isn't evidence
4 dealing with polygamy; it's evidence you take and
5 then weave into your evidence here. Correct?
6 A Say that again.
7 Q Yes. A great deal of the material that is in your
8 expert report has nothing to do with polygamy in
9 itself; it's data which you have taken and woven
10 into your conclusions. Correct?
11 A Correct.
12 Q All right. Now, so your handle, if I can call it
13 that, as an expert, which was quite long today and
14 I'm not going to repeat it, but whatever it is,
15 it's not an expert in polygamy; right?
16 A Right. So my knowledge of polygamy has increased
17 dramatically since I took this job.
18 Q I am sure, because before you weren't an expert in
19 polygamy and now you're giving evidence in a
20 polygamy reference?
21 A Right.
22 Q And you worked hard in the four months to read up
23 on polygamy; right?
24 A Well, I knew a bit from my teaching, but yeah, I
25 did work hard.
26 Q And your two main harms are the same ones as the
27 AG's two main harms, aren't they? Right?
28 A Yes.
29 Q And the two main harms are too many unmarried men,
30 which we'll talk about, and women marrying too
31 young, which we'll also talk about; is that right?
32 A That's right.
33 Q And when you focussed on these as the two main
34 harms of polygamy, as I understand it, those are
35 the purported harms of polygamy. That was your
36 instruction I think in your affidavit. When you
37 looked at the purported harms of polygamy, and
38 these were your two main ones, as I understand it,
39 it's a focus on polygamy per se, polygamy in
40 itself, as opposed to bad conduct which can occur
41 in monogamy or polygamy. And let me help you out.
42 Because the phenomenon of too many unmarried men
43 and the phenomenon of women marrying too young,
44 that's -- those are harms of polygamy per se as
45 opposed to bad things that can occur in monogamy
46 as well, like sexual assault or sexual
47 exploitation; fair enough?
80
Joseph Henrich (for AGBC)
Cross-exam by Mr. Macintosh
1 Q And that's one man and more than one woman; right?
2 A Right.
3 Q And polygamy can include, for example, a group of
4 three women; right?
5 A Good question. Anthropological definitions don't
6 consider that possibility. I was working from my
7 PhD in anthropology point of view.
8 Q All right. Well, I'm trying to work from the
9 criminal law, but can you tell me whether you
10 think that polygamy may include three men?
11 A Anthropological literature does not deal with
12 that.
13 Q All right. So let me ask about the evolution, so
14 to speak, about what you were looking at in this
15 sense. In your affidavit, if we can go back to it
16 again, your first affidavit, and I think
17 paragraph 5, page 2, works as well as any -- I
18 think it's the right paragraph to go to, and
19 paragraph 7 would give rise to the same question.
20 And that is that when you swore the affidavit, you
21 were talking about polygamy as a whole because
22 you're using the word polygamy. And then when you
23 get to your report which is in the affidavit,
24 which is Exhibit B to the affidavit; right? Do
25 you have your report?
26 A My report.
27 Q It's Exhibit B to your first affidavit.
28 A Okay.
29 Q And the title changes. And I'm not saying there's
30 anything wrong with that. I just want to ask a
31 little about it. In the affidavit in the body of
32 it, you talk about polygamy in your paragraph 5
33 and your paragraph 7, and then when we get to your
34 report -- this is your main report, which is
35 Exhibit B to your first affidavit; correct?
36 A Yeah. Okay.
37 Q And now it's become polygyny, and I'm not saying
38 there's anything wrong with that.
39 A Yeah, sure.
40 Q But you obviously restricted your work to the
41 polygyny aspect of polygamy; right?
42 A That's right.
43 Q And was it you or the attorney who caused you to
44 focus on this form of polygamy?
45 A Well, in reading and applying evolutionary theory
46 and going through the literature, it became clear
47 that the issues of downstream societal problems
82
Joseph Henrich (for AGBC)
Cross-exam by Mr. Macintosh
1 A No.
2 Q And in this polygynous centre of Canada then, so
3 to speak, we have 60 people who are married who
4 are monogamous; right?
5 A Right.
6 Q And we have 55 people who are married who are
7 polygynous?
8 A Right.
9 Q 15 -- obviously in the monogamous it's 30 men and
10 30 women, and in the polygynous it's 15 men and 40
11 women; right?
12 A Right.
13 Q And then the unmarried adults, 33 men, 22 women.
14 And so that -- and I know you can do almost
15 anything with statistics, I don't want to go too
16 far here, but I added up the unmarried adults and
17 the polygamous adults and there's 48 men and 66
18 women; right?
19 A I would have to do the addition, but I believe
20 you.
21 Q Well, I added 15 and 33 for men and --
22 A 48.
23 Q And I added 40 and 22 for women, so I got 48 men
24 and 62 women who are either polygamous adults or
25 unmarried adults. Either polygamously married or
26 unmarried adults; right?
27 MR. JONES: Not including single parents or widows.
28 MR. MACINTOSH:
29 Q Not including single parents or widows as
30 Mr. Jones just assisted; right?
31 A Right.
32 Q And then in this place in Canada where there's
33 this polygynous centre, so to speak, there are 30
34 men who married monogamously; right?
35 A That's right.
36 Q And certainly any man who leaves Bountiful, at
37 least as far as you know, is entitled to either be
38 single or to marry monogamously; right?
39 A Right.
40 Q Or to enter into a gay marriage; right?
41 A Of course.
42 Q And I take these numbers from the most
43 polygamously focussed, concentrated place in the
44 country, and I want to again have us look a little
45 bit at Professor Wu's numbers. And Mr. Jones
46 talked to you about some of those numbers, and
47 Exhibit 110, My Lord, is two pages that came in
99
Joseph Henrich (for AGBC)
Cross-exam by Mr. Macintosh