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Preliminary matters
1 December 7, 2010
2 Vancouver, B.C.
3
4 (DAY 9)
5 (PROCEEDINGS COMMENCED AT 10:00 A.M.)
6
7 THE CLERK: Order in court. In the Supreme Court
8 British Columbia at Vancouver, this 7th day of
9 December, 2010, calling the matter concerning the
10 constitutionality of section 293 of the Criminal
11 Code, My Lord.
12 THE COURT: I have two rulings to make this morning.
13 The first is with respect to the application by
14 the Attorney General of British Columbia to
15 restrict the publication of the 14 video
16 affidavits.
17
18 (RULING MADE RE: VIDEO AFFIDAVITS)
19
20 THE COURT: As well before we get underway I have a
21 ruling with respect to certain matters left with
22 me by the CBC. I ask that a copy of this ruling
23 be transcribed and provided to Mr. Henry amongst
24 others.
25
26 (RULING MADE RE: CBC MATTERS)
27
28 THE COURT: Those are my rulings, thank you.
29 MR. CHIPEUR: Chief Justice, my name is Gerry Chipeur.
30 I represent the Christian Legal Fellowship and we
31 are here to have our expert witness Dr. Shoshana
32 Grossbard qualified as an expert and provide for
33 the benefit of the court her expert opinion and to
34 be available for cross-examination, if any.
35 Before we begin that a process there are just
36 a few housekeeping matters with respect to
37 materials that have been filed with the court and
38 I would like to take this opportunity to provide
39 to the Court through the clerk a few items that
40 need to be added to the evidence at this time.
41 The first is a page that has been circulated
42 to the Court and counsel and it is a replacement
43 page for Dr. Grossbard's report. There were two
44 words missing on page 4 of her report under "CI."
45 The two words are "very few" and the replacement
46 page I am handing to the clerk at this time. Just
47 one page to be inserted in replacement for page 4
2
Preliminary matters
1 of the report
2 THE COURT: Of Exhibit A?
3 MR. CHIPEUR: Of Exhibit A, yes.
4 THE COURT: No, sorry.
5 MR. CHIPEUR: Let's see.
6 THE COURT: Exhibit B, is it?
7 MR. CHIPEUR: It is Exhibit 48.
8 THE COURT: Yes.
9 MR. CHIPEUR: Chief Justice. Exhibit 48 and it is then
10 looking at Exhibit A -- or looking at Exhibit 48
11 it is Exhibit B.
12 THE COURT: Right.
13 MR. CHIPEUR: To that affidavit.
14 THE COURT: Do you have a three-hole punch, Madam
15 Registrar?
16 THE CLERK: I don't believe I do, My Lord.
17 MR. CHIPEUR: We can undertake to provide you with a
18 punched copy.
19 THE COURT: Well, that's okay. We'll get a three-hole
20 punch for this courtroom.
21 MR. CHIPEUR: Thank you. The second item to be marked
22 as the next exhibit in the proceedings is an
23 application record with two additional items to
24 added to the Brandeis brief and this has been
25 filed with the court on December 3rd, 2010.
26 THE COURT: Is that the -- does Madam Registrar have an
27 original of that?
28 MR. CHIPEUR: The original is provided and I can give
29 you -- would you like two copies?
30 THE COURT: I have got my copy. Any submissions on
31 entering that? This is adding to the Brandeis
32 brief, is it?
33 MR. CHIPEUR: Yes, Chief Justice.
34 MR. DICKSON: No objection, My Lord.
35 THE COURT: Okay. Exhibit.
36 THE CLERK: That will be Exhibit 107, My Lord.
37
38 EXHIBIT 107: 1 cerlox bound brief titled
39 "Application Record" date stamped DEC 03 2010; 2
40 pages before tabs 1 to 3; 2 yellow sticky flags
41 behind tab 2; originals - An addition to the
42 Brandeis Brief (Exhibit A for ID)
43
44 THE COURT: Shouldn't that just be inserted in the
45 Brandeis brief?
46 MR. CHIPEUR: We wanted, out of an abundance of
47 caution, to provide it in the form of an affidavit
3
Shoshana Grossbard (for Christian Legal Fellowship)
In chief on qualifications by Mr. Chipeur
1 communities?
2 A Yes, there are many African countries. There are
3 also Arab countries. Many of the countries where
4 you find polygamy you find it just in certain
5 parts of that country because it's a cultural
6 phenomenon, and for example it could be limited to
7 certain tribes or certain ethnic groups within a
8 population and sometimes it's also associated with
9 religion.
10 We tend to find it more among Muslims than
11 Christians. It's very rare among Jews because
12 it's illegal in Israel and for Jews and most
13 Jewish communities have also ruled that it's not
14 acceptable.
15 Q Could you give me geographically the locations
16 that you would find, for example, Jewish polygamy?
17 A I am only aware of the existence of some
18 polygamist Jews in Israel and Yemen, but
19 historically it was also found in Kurdistan, which
20 is between Turkey and Iraq, but the Jews of
21 Kurdistan mostly migrated to Israel. I have
22 personally met somebody who grew up in a
23 polygamist household of Kurdish descent.
24 Q And what about the Christian communities?
25 A Christianity prohibits polygamy, so...
26 Q You mentioned that it is found in some Christian
27 communities and so I'm just asking you where you
28 would find them geographically. I'm not asking
29 you --
30 A Oh, yes, FLDS.
31 Q -- what their beliefs are.
32 A The FLDS also recognizes polygamy.
33 Q And where would they be found?
34 A The FLDS in Canada and the US.
35 Q And were you familiar with the FLDS in Canada
36 prior to preparing your report for the court?
37 A No, I was familiar with the FLDS in the United
38 States but I didn't know about Bountiful until I
39 became involved in this case.
40 Q Where would you find the Muslim communities that
41 you referred to?
42 A You find Muslim communities with polygamy in many
43 parts of the world including Canada and US and
44 France because there were a lot of Muslim migrants
45 who are polygamists.
46 Q And would you -- how would you describe these --
47 this worldwide phenomenon that you refer to?
8
Shoshana Grossbard (for Christian Legal Fellowship)
In chief by Mr. Chipeur
1
2 MR. CHIPEUR: And, sir, at the same time I would like
3 to provide the relevant portions in English that
4 we have translated that the witness is going to be
5 in a position to testify is an accurate
6 translation from her perspective, subject of
7 course to replacement by the official translation
8 when it comes, if that is okay with my friends.
9 THE COURT: Okay. So that would be a letter Exhibit as
10 well then?
11 MR. CHIPEUR: Yes, sir.
12 THE COURT: That will be Exhibit what for
13 identification, Madam Registrar?
14 THE CLERK: L for identification.
15 THE COURT: L.
16
17 EXHIBIT L: 11 pages; p/c; first page in colour;
18 titled "La polygamie au regard du droit des
19 femmes"; first page is in French following pages
20 are in English
21
22 MR. CHIPEUR:
23 Q Dr. Grossbard, are you familiar with this report?
24 A Yes.
25 Q Have you read the French version in full?
26 A Yes, I have.
27 Q And do you have in front of you a document that
28 for the purposes of these proceedings is marked as
29 AK for identification and it is a portion of that
30 French report in English, and are you satisfied
31 that it is an accurate translation of the French
32 version?
33 A I can't guarantee that the translation is
34 completely accurate because I didn't have a chance
35 to read the whole translation, I'm sorry.
36 Q That's fine. We'll just ask you at the time when
37 we refer to each specific item whether you're
38 comfortable with it for the purposes of the court.
39 A Okay.
40 MR. CHIPEUR: And I am comfortable with whatever my
41 friend -- limits my friend wants to place on that.
42 MR. DICKSON: My Lord, I don't think any expertise has
43 been established with respect to the translations
44 but I am not going to take any issue with the
45 English translation.
46 MR. CHIPEUR: And I don't think anything turns on the
47 translation, sir, so I am not asking that you
10
Shoshana Grossbard (for Christian Legal Fellowship)
In chief by Mr. Chipeur
1 A I have a copy.
2 Q You have, okay. Dr. Grossbard, would this article
3 be of relevance to the literature review performed
4 by Dr. Campbell, and I'm not going to ask you to
5 express an opinion about her report but I am going
6 to ask you to identify that section of the report
7 that this should be read in conjunction with.
8 A Yes, this is with respect to item 192 in her
9 affidavit number 2 and it's about the academic
10 achievements of adolescents. Dr. Campbell
11 mentions research that deals with Bedouin Arabs by
12 Elbedour and others and that research shows that
13 family structure, namely polygamy versus monogamy,
14 bore no significant impact upon the academic
15 development of adolescents. And this article that
16 we just submitted shows -- by Cherian shows that
17 in another cultural context, namely Transkei,
18 South Africa, adolescents from polygamous families
19 performed significantly worse than adolescents
20 from monogamous families.
21 Q Thank you. The next article that I am going to
22 submit to the court for exhibit purposes is "A
23 study of psychological symptoms, family function,
24 marital and life satisfactions of polygamous and
25 monogamous women: the Palestinian case," an
26 article from 2010 by Professor Al-Krenawi in the
27 International Journal of Social Psychiatry.
28 THE COURT: So we're marking this respectively as
29 Exhibit --
30 THE CLERK: Exhibit 108 and 109, My Lord.
31 THE COURT: 108 would be the Cherian article and
32 Exhibit 109 would be the Al-Krenawi article.
33
34 EXHIBIT 108: 2 pages; p/c; titled "Academic
35 Achievement of Children From Monogamous and
36 Polygynous Families"
37
38 EXHIBIT 109: 8 pages; p/c; titled "A study of
39 psychological symptoms, family function, marital
40 and life satisfactions of polygamous and
41 monogamous women: The Palestinian case"
42
43 MR. CHIPEUR: Thank you very much.
44 Q And Dr. Grossbard, again without expressing an
45 opinion with respect to Dr. Campbell's literature
46 review can you please identify that portion of
47 that review that you believe this particular
23
Shoshana Grossbard (for Christian Legal Fellowship)
In chief by Mr. Chipeur
1 article is relevant?
2 A Now, this is relevant for items 237 through to 242
3 in the section on the psychological health. And
4 Dr. Campbell also cites Professor Al-Krenawi's
5 research but she does not mention his latest
6 research, and that is why I thought the Court
7 should benefit from getting an article he just
8 published this year on this, a similar topic which
9 just emphasizes even more and is methodologically
10 more advanced in showing statistics that associate
11 polygamy with mental illness among women.
12 In addition to that I would like to point out
13 that in her report there is -- it sounds --
14 Campbell -- Dr. Campbell concludes that it's --
15 after item 242 she concludes that it's not so bad
16 for women, because she also mentions in
17 paragraph 242 some positive affects of polygamy on
18 women's psychological wellbeing; however, there is
19 no research that backs up, or no research of
20 similar accuracy, that backs up the positive
21 effect of polygamy on women's psychological health
22 whereas there is plenty of evidence, hard core
23 evidence, that associates polygamy with the
24 negative consequences of -- for the psychological
25 health of women.
26 So to conclude on the basis of that evidence
27 that there is positive and there is negative I
28 don't think is an accurate conclusion from the
29 scientific evidence.
30 MR. CHIPEUR: Thank you very much. That is all that I
31 have to say about those two exhibits.
32 THE COURT: Thank you.
33 MR. CHIPEUR: Thank you, sir.
34 Q Finally, Dr. Grossbard, you mentioned statistics,
35 and I know that you have asked me for statistics
36 from time to time with respect to the Bountiful
37 community. Have you reviewed the evidence that is
38 currently before the court and have you found any
39 of the statistical information that you would need
40 to express an opinion with respect to that
41 community?
42 A Yes, I would have really liked to see some more
43 statistics on Bountiful. In particular I would
44 have liked to see birth registration records that
45 would report on the average age of mothers and
46 fathers, and also -- especially for mother's first
47 birth but also for subsequent births.
24
Shoshana Grossbard (for Christian Legal Fellowship)
In chief by Mr. Chipeur
1 A That's correct.
2 Q And so there's a lower demand for household
3 production; is that right?
4 A That's right.
5 Q And just to illustrate that, in Canada and the
6 United States most of us would buy our clothing in
7 stores as opposed to making it at home; is that
8 right?
9 A That's right.
10 Q And in rural areas where there may not be stores
11 around now we can order goods over the internet
12 and have them delivered? True?
13 A Yeah, all this is true, but if you want to use
14 that to get me to say that polygamy is not likely
15 to spread much in the United States or Canada if
16 it's legalized I would not agree with that because
17 it is a fact that you also find polygamous
18 families in France. You know, with the limited
19 amount of time that they are allowed, the
20 immigration of African polygamous households
21 200,000 people are estimated to be in those
22 households in France. So -- and France is at
23 least as commercial a country as we are or the US
24 or Canada, so I think there is a definite danger
25 that if a country makes it possible for polygamous
26 immigrants to come that there might very well be
27 very large numbers of immigrants aspiring to a
28 life with more freedom and a higher standard of
29 living even though they are polygamists and
30 polygamy might have been better adapted to their
31 rural background.
32 Q Yes. What you were speaking of there relates to
33 immigration and you're using the example of
34 France?
35 A Yes.
36 Q And, you know, I take your evidence on that.
37 Just let me turn to the paper that is -- that
38 you cite in your report written by Gould, et al.
39 Are you familiar with that paper
40 A Yes.
41 Q It's called "The Mystery of Monogamy"?
42 A Yes.
43 Q Do you have a copy of that paper in front of you?
44 A No. I don't have that in front of me. I did not
45 bring that one in front of me. Thank you.
46 Q That's the application record that my friend
47 handed up and the flagged page there is just the
29
Shoshana Grossbard (for Christian Legal Fellowship)
Cross-exam by Mr. Dickson
1 A Yes.
2 Q Thank you, Professor Wu. That's a very helpful
3 summary.
4 Turning then to affidavit number 2. In that
5 affidavit you were posed a number of demographic
6 questions, if I can put it that way, and you
7 provided your answers and we'll go through some of
8 those questions and your answers to them. But in
9 general terms what sources of information did you
10 use to answer these questions?
11 A Well, my research primarily uses secondary data as
12 the previous -- this morning's witness expert, and
13 I do very little data collection myself except I
14 do some field work in China which I'm involved in
15 collecting some data. But Canadian research
16 largely involves secondary data analysis. This
17 data most -- probably all I would say coming from
18 Statistics Canada.
19 Q Statistics Canada?
20 A From Statistics Canada.
21 Q Very well. And what is your view of the
22 reliability of Statistics Canada's data?
23 A Well, Statistics Canada is one of the finest
24 statistical agencies in the world. It collects
25 and produces high quality data. Their standards
26 are high and they have a very strong -- very clear
27 and well-defined standards and protocols for data
28 collection. The quality always maintains very
29 high. As I served on their committees I have been
30 seeing how they get their data collected. These
31 are -- Statistics Canada data are the best you can
32 have in this country.
33 Q Very well. Turn now to paragraph 5 where just
34 above that paragraph you are asked the question
35 what are the rates of spousal abuse and child
36 abuse in Canada. And just briefly what were your
37 ultimate conclusions on that question?
38 A Well, there are a few things I can draw the
39 conclusion from this brief sort of an answer to
40 the question. One of the things is that a
41 relatively small percentage of crime, for example
42 spousal violence, gets reported to the police.
43 According to one estimate only 27 percent of the
44 victims of spousal violence reported the incidence
45 to the police.
46 In terms of the actual number of incidents of
47 violent crimes according to the StatsCan Centre
45
Zheng Wu (for the Amicus)
In chief by Mr. Dickson
1 wrote?
2 A Yes.
3 Q Okay.
4 A That's been awhile though.
5 Q I'm sorry?
6 A It's been awhile though.
7 Q I understand that. It won't be a hard quiz.
8 And the second is called "Shacked up: A
9 Demographic Profile of Non-Marital Cohabitation"
10 and that's from -- sorry 2007 and this looks like
11 a PowerPoint presentation. Is that what it was?
12 A That is correct. That's how I used to present at
13 the Parliament Hill, yeah.
14 Q At a Breakfast --
15 A Yeah.
16 Q -- On the Hill Seminar Series in Ottawa?
17 A That's right.
18 Q And could you just flip through it and make sure
19 that's actually what you presented there.
20 A I actually do have a paper copy of this article if
21 you need.
22 Q Do you?
23 A I do have it.
24 Q You don't have it with you?
25 A I don't have it with me but I have it.
26 Q I think this is all I'll need to refer to today,
27 thank you.
28 A Okay. Yeah, it looks like it.
29 MR. DICKSON: Okay. My Lord, perhaps I could ask that
30 those be marked as exhibits, the first being
31 "Recent Trends in Marriage Patterns in Canada" by
32 Zheng Wu.
33 THE COURT: Thank you.
34 THE CLERK: Exhibit 111, My Lord.
35
36 EXHIBIT 111: 4 pages; p/c; titled "Recent Trends
37 in Marriage Patterns in Canada"
38
39 MR. JONES: And the second being "Shacked up: A
40 demographic profile of non-marital cohabitation"
41 by John Wu.
42 THE CLERK: Exhibit 112, My Lord.
43 THE COURT: Thank you.
44
45 EXHIBIT 112: 18 pages; p/c; titled "Shacked up:
46 A Demographic Profile of Non-Marital Cohabitation"
47
53
Zheng Wu (for the Amicus)
Cross-exam by Mr. Jones
1 MR. JONES:
2 Q Okay. Dr. Wu, I'm not going to ask you a heck of
3 a lot of questions about your affidavits
4 themselves but I didn't want the opportunity of
5 having one of our country's leading demographers
6 of the family here to probe you a little, if I
7 can, on the larger questions that are afoot.
8 In the course of your preparation for your
9 testimony today or the preparation of your
10 affidavits did you read any of the other expert
11 reports filed in this case?
12 A I quickly read two affidavits from Angela
13 Campbell.
14 Q Yes.
15 A And also quickly read two affidavits from Joe
16 Henrich.
17 Q Okay. And do you know Professor Henrich?
18 A No.
19 Q Do you know of him?
20 A No.
21 Q Okay. Now, the questions that you were asked to
22 answer are just those ones that were addressed in
23 your report; is that right?
24 A That's right.
25 Q So they're set out as headings, how many divorced
26 people are there. Okay.
27 A M'mm-hmm.
28 Q None of the questions concern polygamy; is that
29 right?
30 A No.
31 Q What's your level of familiarity with the
32 sociological literature around polygamy. Is it
33 something you looked at?
34 A Very little.
35 Q Very little?
36 A Very little.
37 Q I'm going to refer you, if I can, because I want
38 to put this proposition to you in fairness to my
39 friends. This is -- you likely won't have read
40 this. This is an excerpt from the amicus's
41 opening statement with respect to section 1 and
42 just as an aide-memoire, I will give you one for
43 His Lordship too. I just reprinted it here. And
44 I just want to take you to a passage of it and ask
45 you if there's anything you can see to enlighten
46 us, and that's -- it's paragraph 45 and I just
47 want to start from the third sentence which is the
54
Zheng Wu (for the Amicus)
Cross-exam by Mr. Jones
1
2 Any pool of unmarried men that might
3 realistically be created through polygamy is
4 statistically meaningless.
5
6 But again you have no evidence to offer us on that
7 point either?
8 A Well, I don't know what is -- where the starting
9 point is. How many there are right now and --
10 Q Right.
11 A And the inquiries becomes statistically
12 significant. But the other thing is you have to
13 quantify what's statistically significant. What
14 do you mean by statistically significant.
15 Q Now, is that a term of art that has a particular
16 different reference in different contexts? Could
17 you shed any light on what it would mean in this
18 context?
19 A I'm speculating. In this context probably
20 statistical meaningless or statistically
21 significant. Problem is that the increase in
22 numbers which is substantial is noticeable or
23 non-trivial number.
24 Q Substantial or non-trivial number?
25 A Yeah, I would say. But statistically significant
26 has its own meaning in statistics.
27 Q Right. Okay. So we'll watch for evidence on
28 statistical significance, I suppose. I won't hold
29 my breath. And nothing to do with your report,
30 sir, which is thorough and accurate as near as I
31 can see.
32 Perhaps going to your first affidavit if I
33 could ask you to turn to page 6, and this just
34 discusses the crude marriage rate. It's right at
35 the bottom of page 6.
36 A M'mm-hmm. Okay.
37 Q And it says the crude marriage rate marriage per
38 thousand population stood at 4.6 in 2004.
39 A M'mm-hmm.
40 Q Is that right?
41 A M'mm-hmm.
42 Q And then if we go over the page you talk about --
43 you show this graph to show total first marriages.
44 This is the crude rate I take it and it's
45 descending?
46 A That's right.
47 Q In the period studied which is 1986 to 2004?
56
Zheng Wu (for the Amicus)
Cross-exam by Mr. Jones
1 A M'mm-hmm.
2 Q Okay. Now, I appreciate this article was awhile
3 ago but perhaps I can just take you to the "Recent
4 Trends in Marriage Patterns" article?
5 A M'mm-hmm.
6 Q Now, this shows albeit an older study but a
7 lengthier one; is that right? You were discussing
8 here the marriage rates in Canada from 1921 to
9 1995?
10 A That's right.
11 Q And so what we see on this chart on the very first
12 page; do you see that?
13 A M'mm-hmm.
14 Q So we've got your 1986 to 1994/1995 period just at
15 the very tail-end of this --
16 A M'mm-hmm.
17 Q -- curve. But then we see that sort of in the
18 grander scheme of things it's gone up and down.
19 And that was the point of this article, wasn't it,
20 sir? It was really what you were saying, that
21 although it appears that marriage is descending in
22 recent years if you look at the long view it's
23 actually been up and down; is that right?
24 A Yes. For this article.
25 Q Right.
26 A I was trying to argue, yeah.
27 Q Sure. And since that time in fairness it has gone
28 down further still. It's now at 4.6 and it looks
29 like at the end of this one it was 5.5 or
30 thereabouts?
31 A Yeah, it's declining. Has been actually ever
32 since 1950s you can see, and 70s go on.
33 Q But your point in this article was that, you know,
34 it's really not all that much lower than it was in
35 the 1920s. But let me put it this way, we can't
36 extrapolate this slide of the last few years
37 indefinitely back through --
38 A In terms of marriage patterns probably it's wrong
39 to do that, yeah.
40 Q Right. And maybe I should clarify a couple of
41 terms. In this article and your reports you talk
42 about marriage and you're talking about legal
43 civil marriage?
44 A That's correct.
45 Q Okay. Now, the proposition that I take you to be
46 making, and I don't think I need to take you to
47 the parts where you say this, is that marriage is
57
Zheng Wu (for the Amicus)
Cross-exam by Mr. Jones
1 Q Right.
2 A So it's sort of a demographer, so I want to ask
3 people who survive until that age. But it
4 follows, same fertility and mortality schedule.
5 Q Right.
6 A So that's correct, yeah.
7 Q Right. So the number of single people at any of
8 these age stages doesn't really tell us about who
9 is in the market over their lifetime, does it?
10 A Certainly at the time of the survey or census they
11 are never married.
12 Q Yes.
13 A They are available.
14 Q Yes.
15 A They're in the market.
16 Q Yes.
17 A Whether in their lifetime you can't -- it's a
18 snapshot. It's not.
19 Q Okay.
20 A I think -- I'm not sure whether I answered your
21 question or not.
22 Q No, I think we're getting there. Perhaps I can
23 take you back to that article, sir, "Recent Trends
24 in Marriage" and to page 4. I'm just going to
25 start from the fourth line from the bottom of the
26 first column. And it says this, sir, "if as
27 suggested if marriage is weakening" -- sorry,
28 page 4.
29 MR. DICKSON: Yes, thank you.
30 MR. JONES:
31 Q
32 As suggested if marriage was weakening we
33 would expect that marriages might not only be
34 delayed but in many instances foregone
35 entirely. However, this does not seem to be
36 the case. Indeed, figure 3 suggests that if
37 current patterns of first marriage persist
38 close to 90 percent of Canadian women and men
39 are likely to marry eventually.
40
41 A M'mm-hmm.
42 Q Is that still the case?
43 A Well, let me just check the data source for this
44 article. This is based on a 1990 general social
45 survey. I haven't used the more recent data to do
46 the replicate analysis.
47 Q Right.
60
Zheng Wu (for the Amicus)
Cross-exam by Mr. Jones
1 that sense?
2 A That's correct.
3 Q And globally the drive and the presence of the
4 human pair bond, if I can put it that way, which
5 includes all these forms of committed
6 relationship, is universal, isn't it, sir?
7 A I think so, yeah.
8 Q Now, you spoke a little in your affidavits about
9 the impacts of changes in the law on human
10 behaviour. Divorce, for instance, became first
11 legal, I guess, without an act of Parliament and
12 then increasingly available under the law?
13 A That's right.
14 Q And that contributed in your view to the increase
15 in divorce rates?
16 A For the spikes, yeah.
17 Q Yes.
18 A The '86 and the '85 legislative changes certainly
19 caused, if you look at the chart of the divorce
20 rate you can see two spikes there a year after and
21 then you see the sudden increase in divorce rate.
22 Q Right.
23 A And that largely reflects the people holding off
24 and then the law has changed and the people jump
25 to divorce.
26 Q There's a blurting out of repressed ambition
27 perhaps there; is that right?
28 A Probably, yeah.
29 Q And so that's a characteristic that is mutable,
30 it's dependent on the law, compared to something
31 like homosexuality. And I would suggest to you
32 that after homosexuality was decriminalized there
33 probably weren't a heck of a lot more homosexuals
34 than there were before. Is that fair to say?
35 A Yeah, I would think so, yeah.
36 Q Okay. In your analysis, sir, and the statistics
37 available that you've had with respect to, if I
38 can put it this way, the pools of unmarried
39 persons, do you have any information on their
40 socioeconomic status, whether they're above
41 average or below average or where those --
42 A You're talking about a man or women or both?
43 Q Either.
44 A Well, my marriage studies suggest that people tend
45 to -- men with higher social economic status are
46 more likely to get married.
47 Q I see. They're more marriageable in the market?
62
Zheng Wu (for the Amicus)
Cross-exam by Mr. Jones
1 fair statement?
2 A M'mm-hmm.
3 Q And one of the terms you've used throughout the
4 report is the term "common law marriage"?
5 A M'mm-hmm.
6 Q I noted today during your testimony you didn't use
7 the term common law marriage in your oral
8 testimony today, but it's throughout your report.
9 And I was struck by the other documents that were
10 handed up today, Exhibit 110. This was the chart
11 dealing with never married population that your
12 counsel handed up at one point. I don't know if
13 you have that in front of you.
14 A Thank you.
15 Q There were actually two pages and the second page
16 talks about never married population not in common
17 law relations by age; do you see that?
18 A M'mm-hmm.
19 Q So is it fair to say that Statistics Canada
20 doesn't use the term common law marriage but, in
21 fact, refer to common law relationships. Is that
22 a fair statement?
23 A StatsCan uses common law unions actually.
24 Q Although this -- is this something you prepared
25 when they talk about common law relations here in
26 this StatsCan document?
27 A This title I added in so I can't remember now what
28 StatsCan website says. But maybe I want to
29 clarify that. In my own writing over the years I
30 used probably more cohabitation than any other
31 terms.
32 Q Okay.
33 A The reason is to be consistent in the literature.
34 Doesn't mean that really we call it cohabitation
35 here. We call it common law unions or some people
36 call it common law marriage. Common law
37 relationships, cohabiting units, cohabitation. So
38 all my intended purpose they mean the same thing.
39 Q Okay.
40 A I'm not trying to differentiate between common law
41 marriage from common law union or common law
42 relationship or cohabitation. For me it's
43 statistically a demographic referring to the same
44 thing.
45 Q Okay. Do you know whether or not common law
46 marriage has a specific legal meaning?
47 A No. I don't have any legal training.
71
Zheng Wu (for the Amicus)
Cross-exam by Mr. Reimer
1 questions asked.
2 Q Thank you. And, in fact, I gave you a copy of
3 this or to your counsel before court. Perhaps I
4 can hand this up to you at this time and see if
5 you recognize it. I'm going to show this book to
6 the witness, My Lord. Is this your book?
7 A Yes.
8 Q This is a copy of Cohabitation: An alternative
9 form of family living. I only have the one copy.
10 It's on interlibrary loan, and I'm happy to
11 provide it -- actually you know what, I have
12 copies of the relevant portions. Perhaps I will
13 hand those out. I guess I can't file the
14 interlibrary loan. I'm sure they would have
15 concern with me doing that.
16 And if I can refer you -- I've included
17 portions of it and I refer you to page 166.
18 They're just excerpts from it but they should be
19 in numerical order, so if you go to the back.
20 A 166? I don't have 166. Okay.
21 THE COURT: It stops at 153.
22 THE WITNESS: I don't have 166.
23 MR. REIMER:
24 Q Okay. It was -- that's okay. We can do without
25 it. We can deal with that this afternoon.
26 Now, in your report you also equate common law
27 marriage which we've now agreed to ^ cw talk about
28 common law relationships or common law union and
29 cohabitation. And, in fact, you indicate as Your
30 Lordship had already indicated that you, in fact,
31 have recognized that the social science literature
32 often talks about common law marriage as being
33 cohabitation. That's the term that is used.
34 And again just to be clear when we're talking
35 about cohabitation we're talking again about a
36 non-legally -- a non-legal marriage relationship;
37 is that fair to say?
38 A That's correct. Non-marital cohabitation.
39 Q In your paper what do you include in cohabitation.
40 How would you define the term "cohabitation"?
41 A How did I define?
42 Q Yes.
43 A How do I define?
44 Q Yes.
45 A Well, as I said I wouldn't distinguish between
46 cohabitation from a common law unions.
47 Q Okay.
74
Zheng Wu (for the Amicus)
Cross-exam by Mr. Reimer
1 A That's correct.
2 Q And in your book you also indicated that your data
3 suggested the instability of cohabitation was
4 increasing over time. Is that still true?
5 A That's probably not true now. I did some more
6 analysis more recently. I can't remember where
7 now. My recollection is that actually
8 cohabitation is becoming more stable compared to
9 10 to 15 years ago now. So I suspect a selective
10 group of people now are more looking for long-term
11 relationships and more committed to their
12 relationships and become more a normative
13 behaviour.
14 Q But generally, we'll come back to the point that
15 unmarried cohabitations are shorter in duration
16 than legal marriages?
17 A That's correct.
18 Q And you just talked a few minutes ago about sort
19 of variety in cohabitation relationships and what
20 people might be looking for, and I'm assuming you
21 would agree that while people could enter into a
22 cohabitation relationship or the people who enter
23 into a cohabitation agreement or relationship
24 without marrying may do so with a sense of
25 commitment and desire for permanence, would you
26 agree that by definition all of those people who
27 choose to marry are making a public contractual
28 commitment to a permanent relationship? In other
29 words, by the very act of entering the marriage
30 they are making that public commitment?
31 A Well, there are different reasons why people get
32 married. I would say perhaps most people marry
33 for that purpose, but other people marry for other
34 purposes.
35 Q Okay. But to enter into a legal marriage do they
36 in fact have to make that public contractual
37 commitment?
38 A That's correct.
39 Q So that, in fact, is an important aspect of the
40 marriage, is that public contractual commitment to
41 the relationship?
42 A That's correct.
43 Q In fact, would you agree that's been recognized as
44 one of the distinguishing features of the
45 institution of marriage, that permanent
46 contractual commitment?
47 A That's correct.
78
Zheng Wu (for the Amicus)
Cross-exam by Mr. Reimer
1 statement?
2 A Can you say it again, sorry.
3 Q Would it be fair to use the term "conjugal
4 relationship" instead of "conjugal union," would
5 that be accurate?
6 A Again I tend to use the two terms interchangeably.
7 Q Okay.
8 A Yeah.
9 Q The two terms conjugal union and conjugal
10 relationship?
11 A Yeah. Relationship and unions are sort of
12 interchangable. But certainly by definition union
13 seems to be more stronger bonding compared to a
14 relationship, in a union as opposed to in that
15 relationship. But certainly when I use one term
16 over the term I didn't mean that this is more
17 durable or more different type of relationship.
18 Q Okay. Now, if I can go back to your report, this
19 is Exhibit B to your first affidavit and in
20 particular page 6 of that report? And there's a
21 table at the top of that page?
22 A M'mm-hmm.
23 Q Do you see that? Titled "Census Family Structure
24 1981 to 2006."
25 A M'mm-hmm.
26 Q And then it breaks it down by family type, total
27 coupled families, lone parent families, and within
28 coupled family it breaks it down by married
29 couples. Again I take it from that it's referring
30 to legally married couples?
31 A That's correct.
32 Q And then common law couples?
33 A That's right.
34 Q Okay. And when I look at those numbers for 2006,
35 for the most recent year you've reported there,
36 somewhere between 81 and 82 percent of coupled
37 families are legally married couples?
38 A That's correct.
39 Q And so these are coupled families centred around a
40 legally married couple?
41 A That's right.
42 Q And they may or may not have kids?
43 A That's correct. Yeah.
44 Q And the common law couples, the next one down, is
45 just over 18 percent?
46 A M'mm-hmm.
47 Q Of coupled families or common law couples. So
80
Zheng Wu (for the Amicus)
Cross-exam by Mr. Reimer