12 07 2010 Transcript Proceedings at Canadian Reference Case Day 9

1
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 but, sir, I do not have any problem with just

2 simply adding it to item A in the proceedings.
3 THE COURT: Okay, well maybe -- we have already marked
4 it so make a note that Exhibit 107 is in addition
5 to the Brandeis brief.
6 MR. CHIPEUR: Thank you very much sir.
7 MR. DICKSON: My Lord, the whole affidavit is Exhibit
8 107?
9 THE COURT: Correct.
10 MR. CHIPEUR: If it pleases the Court, I would like to
11 ask that Dr. Shoshana Grossbard be called to
12 provide evidence and to be sworn at this time.
13 THE COURT: Thank you.
14
15 Shoshana Grossbard, a witness
16 called by the Christian
17 Legal Fellowship, sworn.
18
19 THE CLERK: Please state your full name and spell your
20 last name for the record.
21 THE WITNESS: My last name is Grossbard
22 G-r-o-s-s-b-a-r-d. And my first name is Shoshana.
23 S-h-o-s-h-a-n-a.
24
25 EXAMINATION IN CHIEF ON QUALIFICATIONS BY MR. CHIPEUR:
26 Q Would you like me to take the Torah from you and
27 just place it over here on the counsel table so
28 it's not in your way?
29 A Okay. Thank you.
30 Q Dr. Grossbard, do you have the affidavit that you
31 swore on July 16th, 2010 in front of you?
32 A Yes.
33 Q Exhibit 48 before the court. I'm going to ask you
34 a few questions to qualify you as an expert for
35 the purposes of the proceedings.
36 Can you please explain to the Court the
37 current employment that you have and the nature of
38 the expertise that qualifies you for that
39 employment.
40 A I'm a professor of economics at San Diego State
41 University and I hold areas of specialization in
42 labour economics, law and economics of households,
43 marriage, economics of marriage including
44 polygamy, gender studies, political economy,
45 labour economics, sociological economics and
46 anthropological economics.
47 Q And at San Diego State University what courses do
4
1 you currently teach?

2 A I teach an introduction to micro-economics and a
3 course on economics of work, marriage and family.
4 Q Can you please advise the Court of your original
5 postgraduate education.
6 A Yes, I got my doctorate in economics at the
7 University of Chicago where I did a special field
8 in labour economics and anthropology and I wrote
9 my dissertation on the economics of polygamy under
10 the supervision of Gary Becker who later got the
11 Nobel Prize in economics.
12 Q Can you please tell us about some of the other
13 professors that would have been important in your
14 education.
15 A Yeah, besides Gary Becker I also took courses from
16 Milton Friedman and George Stigler who both got
17 the Nobel prize as well. I took a course more
18 specifically with George Stigler on the economics
19 of public control which is -- which helps explain
20 why I have this approach to political economy.
21 And in addition to that I was an assistant to T.W.
22 Schultz who also got the Nobel prize in economics,
23 so all four of these professors got the Nobel
24 prize.
25 Q But you don't have yours yet?
26 A I'll never get it.
27 Q And when you said anthropology did you mean
28 anthropological economics?
29 A Not only anthropologic. I studied a lot on the
30 family, kinship and family.
31 Q And can you then describe for the court your
32 career since graduation from the University of
33 Chicago and in particular focus on some of the
34 universities you had either visiting or other
35 fellowships?
36 A Yeah, I'm currently also a professor at the
37 University of Zaragoza in Spain and in the past I
38 have visited Bar-Ilan University in Israel, Paris,
39 Sorbonne and Jourdan which is part of the grandes
40 ecoles, and I have been at the CESifo in Munich
41 and I am going to be going to Osaka in the spring
42 as a visiting scholar.
43 Q So in all of those universities you were a
44 visiting scholar?
45 A Sometimes visiting scholar and sometimes I've
46 taught. At the Sorbonne and at Jourdan and at
47 Bar-Ilan and at Zaragoza, I teach there.
5
1 Q And how long have you been a professor at San

2 Diego State University?
3 A 29 years.
4 Q And during that time can just you give the Court a
5 photograph of your publication history.
6 A I have more than 50 journal articles and I have
7 authored a book on my own, and I have -- I have
8 edited four books.
9 Q And have you served as the editor or associate
10 editor of any journals?
11 A Yes, I am currently the founding editor of Review
12 of Economics of the Household that is published by
13 Springer and I am also an associate editor of the
14 Journal of Socioeconomics and I have been on
15 the -- an associate editor of the Journal of
16 Bioeconomics.
17 Q What was the focus of your thesis at the
18 University of Chicago?
19 A It was an economic analysis of polygamy. I used
20 data from Maiduguri, Nigeria, and the principal
21 topic was to explain why certain men and women are
22 part of a polygynous household whereas others are
23 not.
24 Q And did you have an opinion at the time about the
25 subject of polygamy?
26 A Well, at the time my opinion about polygamy was
27 neutral.
28 Q And can you tell me whether you continued to study
29 in the area of polygamy since your educational
30 time period?
31 A Yeah, since I wrote my dissertation my views about
32 polygamy have evolved.
33 Q And have you published on the subject of polygamy
34 since your thesis?
35 A Yes, I have half a dozen publications on it and my
36 book on the economics of marriage includes a
37 chapter on polygamy.
38 MR. CHIPEUR: Chief Justice, based upon this evidence I
39 ask that the Court find that Dr. Grossbard is an
40 expert in the area of economics of marriage, the
41 economics of home production, the economics of the
42 family, polygamy, gender studies, labour
43 economics, sociological economics and
44 anthropological economics. And Dr. Grossbard, my
45 friends, the other lawyers that are here today,
46 may have some questions for you at this time.
47 THE COURT: Just clarifying, expert on polygamy or
6
In chief by Mr. Chipeur
1 economic -- the economics of polygamy?

2 MR. CHIPEUR: The economics of marriage including
3 polygamy.
4 THE COURT: Okay.
5 MR. CHIPEUR: But yes, polygamy qualified by the
6 economics of polygamy. Thank you, sir.
7 THE COURT: Correct. Any cross-examination of
8 Professor Grossbard?
9 MR. DICKSON: No, My Lord.
10 THE COURT: Thank you. Any submissions? Thank you.
11 Pleased to qualify the doctor.
12 MR. CHIPEUR: Thank you very much, sir.
13
14 EXAMINATION IN CHIEF BY MR. CHIPEUR:
15 Q Dr. Grossbard, you have in front of you your
16 report which for the Court is marked as
17 Exhibit 48. And in your report I bring your
18 attention to the heading "Introduction." And at
19 paragraph E you say that "the analysis that
20 follows is in the spirit of the political economy"
21 and then you talk about women's well-being. Can
22 you please explain to the Court what an economist
23 means when they talk about well-being and
24 political economy.
25 A Okay. So well-being is a very sophisticated
26 concept that can include many elements. What --
27 we talk a lot about well-being in economics.
28 Sometimes we call it utility or value. There is
29 all kinds of related concepts. And if you just do
30 an economic analysis with demand and supply you
31 get certain predictions and what I have learned
32 increasingly that when you study marriage markets
33 and subjects like polygamy you need to pay
34 attention to the political factors because
35 political and sociological institutions are also
36 the product of economic decision making.
37 Q And before I take you into the economic analysis
38 that you made, can you please describe for the
39 Court the types of polygamist communities
40 worldwide that you are familiar with.
41 A Well, polygamy is a very widespread phenomenon.
42 Most African countries have polygamy and a
43 majority of Asian countries have it, and it's also
44 found in some parts of America. North America in
45 particular.
46 Q And can you say anything about the nations that
47 would be primarily the host to polygamist
7
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
1 Would you describe it as mainly cultural or mainly

2 residential, or would it be both?
3 A It's mainly a cultural phenomenon that is
4 associated with religion.
5 MR. CHIPEUR: At this time, Chief Justice, I would like
6 to mark a document that is currently in A of the
7 Brandeis Brief and it is a report. It is called
8 "Avis -- La polygamie au regard de droit des
9 femmes." It is from the Conseil du statute de la
10 femme of Quebec and it's a government of Quebec
11 document. It's currently marked for
12 identification. I would like to have it marked as
13 an exhibit so that it can be provided to the
14 witness at this time.
15 THE COURT: Well, can we get to the bottom -- is this
16 the one that has to be translated?
17 MR. JONES: That's the one.
18 MR. DICKSON: That's correct, My Lord. Now, a partial
19 translation was provided yesterday, I believe.
20 I'm not sure where it begins in the document. I
21 am not sure what aspect of the document it relates
22 to.
23 THE COURT: So are we marking it at this time?
24 MR. DICKSON: I would much prefer to have the entire
25 document translated so that we could mark it but I
26 believe Mr. Chipeur wishes to put the English
27 portion in and I am not going to object to that.
28 THE COURT: Okay. Well, we can do one of two things.
29 We can retain the marking for identification until
30 the translation is completed and we can then
31 tender it as an exhibit.
32 MR. CHIPEUR: I am very comfortable with that, sir.
33 THE COURT: Okay. Madam Registrar. You said, counsel,
34 this was marked for identification as A?
35 MR. CHIPEUR: I believe it's part of Brandeis A if I'm
36 correct. That's what I was advised but I do also
37 have a second item that probably should be marked
38 at this time. Yes. That is -- that is it.
39 THE CLERK: My Lord, it's Exhibit A for Identification,
40 tab J.
41 THE COURT: So we'll refer to it as such. This is?
42 THE CLERK: Exhibit A for Identification.
43 THE COURT: Good. Is that my copy or is that the
44 witness's copy?
45 MR. CHIPEUR: That is your copy and the witness has a
46 copy.
47 THE COURT: Exhibit A.
9
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
1 accept this as an accurate translation. It's just

2 for reference only.
3 THE WITNESS: And I am going to base what I say on the
4 French text because French is my first language.
5 MR. CHIPEUR:
6 Q Thank you. Dr. Grossbard, you have made reference
7 to the incidents of polygamy worldwide. Is there
8 a part of the report from the Quebec government
9 that's before you that would be a useful reference
10 for the Court in identifying the distribution of
11 polygamy in the world? Can you bring the Court's
12 attention to those pages?
13 A Yeah, on page 127 of the French report, which is
14 not the one that was just circulated, there is an
15 appendix which is called "annex number 1, the
16 legal status of polygamy in the world" and it has
17 a map of the incidence of polygamy in the world
18 which is very useful.
19 Q Thank you very much. Now, I'm going to take you
20 back to your report and I'm going to take you to
21 the heading called "Economic Analysis" and in
22 particular paragraph A. I would ask that you
23 explain what you meant when you said that polygamy
24 causes increased male competition over women, and
25 then you state that -- and then you state a few
26 other things. So can you just explain what you
27 meant by that paragraph to the Court?
28 THE COURT: I beg your pardon.
29 THE WITNESS: Yes. This follows --
30 MR. CHIPEUR: Excuse me.
31 THE COURT: I've got it.
32 MR. CHIPEUR: Okay. Thank you.
34 MR. CHIPEUR:
35 Q Economic analysis paragraph A.
36 A So this follows an analysis that was done by Gary
37 Becker in his pioneering article published in 1973
38 in the Journal of Political Economy and there he
39 has a demand and a supply, and he has -- on the
40 horizontal axis he has wives, so demand for wives
41 by men and supply of wives by women. And then he
42 says if you allow polygamy in a marriage market
43 the demand for women will increase whereas the
44 supply doesn't change and therefore if you just
45 look at it from a simple demand and supply
46 perspective it looks like the value of women will
47 go up, will increase, because there is a higher
11
1 demand for a given supply.

2 Q And did you find that that was the case?
3 A Well, at the time I was naive when I first studied
4 these materials and I thought that the fact that
5 bride price is paid in polygamous societies much
6 more often than in monogamous societies, namely
7 bride price meaning that men pay for women when
8 they get married, I thought that was an indication
9 of a higher value of women. But now I know
10 better.
11 Q And what did you find?
12 A Well, it's still -- you know, it is the case that
13 bride price -- the incidence of bride price
14 cross-culturally is positively correlated with the
15 incidence of polygamy. So what does that mean?
16 It means that -- the way I interpret it now
17 actually is that it means that men did not like
18 the fact that women's value is so high if markets
19 were to be free so they instituted bride price
20 which is one way by which the men, namely fathers,
21 control women because they are the ones who marry
22 out their daughters and they are the ones who get
23 the money when a marriage occurs. So this is not
24 really benefitting women at all.
25 Q In paragraph B you say that women don't
26 necessarily capture their increased market value
27 in polygamous societies and in particular you
28 reference Guttentag and Secord. Can you please
29 advise the Court what they found in their book.
30 A Yes, their book The Sex Ratio Question, which was
31 published in 1983, had an impact on my thinking
32 because they argued that men -- cross-culturally
33 you find that in cultures where polygamy occurs
34 men typically find ways to limit the power of
35 women in various ways, and I think they're right.
36 So since the 1980s I've been following their
37 thoughts on this matter.
38 Q And can you advise the court of some of those
39 ways. You said there were various ways. Can you
40 be specific about the ways in which it is
41 controlled?
42 A So I already mentioned one institution that is
43 often found in polygamist societies, namely that
44 bride price is paid at the time of marriage.
45 Another institution which is found in large parts
46 of Africa where you also find polygamy is female
47 circumcision, and the connection between those two
12
1 institutions is that when women go through this

2 process of genital mutilation they will be less
3 able to experience sexual pleasure and this is
4 going to make it easier for men to control them,
5 especially if they cannot give them much attention
6 within the context of a polygamous household.
7 More precisely polygynous household. So that's
8 another example.
9 The other example is easy divorce. Very
10 little protection for women and rights for women
11 in the case of divorce. For example, in Islam
12 according to Muslim law men can just say, "I
13 divorce you" three times and that's -- there is a
14 divorce. And women then don't get any custody for
15 the -- to their children automatically. Muslim
16 law accords the rights of custody to the father.
17 So that puts women in very weak position in case
18 they're unhappy and they would like to leave. And
19 that institution is also found, as I said, in
20 Islam, which is the largest world religion that
21 approves of polygamy.
22 Should I continue my list of institutions?
23 Q Please, please.
24 A We also found that polygamous societies tend to
25 have arranged marriages. They don't really want
26 women to choose their husbands. Polygamous
27 societies tend to have early marriage. Often in
28 Africa and the parts of Africa that I studied,
29 Maiduguri Nigeria, women often got married by
30 age 13. Very young. Whereas men get married much
31 later. So that also -- these two factors of
32 arranged marriage and early marriage also -- can
33 also be explained -- the reason they are prevalent
34 in polygynous society is also because this helps
35 increase the supply of women. So these two
36 institutions simultaneously increase the supply
37 and help men control women in general.
38 Furthermore, an institution that is often
39 found in polygynous society is perda which is
40 basically -- an English translation would be --
41 I'm not sure what the best word would be to
42 translate perda, but it's isolating women, making
43 it difficult for them to get out of a compound.
44 And that is common among the Muslims of Maiduguri,
45 one -- the society I know the best, but it's also
46 common in many other parts of the world and not
47 only Muslim parts. Historically it was found in
13
1 the harems of the sultans in Istanbul or Granada.

2 Like, I visited Alhambra and saw the place where
3 women were kept in isolation. These places really
4 look like prisons. And they had eunuchs watching
5 them who then in turn were castrated so there
6 wouldn't be too much danger that all these women
7 craving for attention would, you know, do
8 something that the sultan didn't want them to do.
9 So you see that -- that's the whole institution of
10 perda and separation is typical of polygamous
11 societies.
12 Another institution is an ideology of romantic
13 love. We in the west think it's a normal, natural
14 way of thinking about marriage. We associate love
15 and marriage. But in most of these polygynous
16 societies, whether they are African tribes or
17 Islamic cultures, they discourage romantic love.
18 They inculcate in their young that it's not good
19 to marry out of love because that would make it
20 more difficult for the man to control women if
21 women were able to act up on their aspirations to
22 be loved. So they convince them it's not good to
23 be loved, to look for love.
24 Q And you mention two particular religious or
25 cultural communities. Are there other cultural
26 communities that are polygamous where you have
27 found romantic love as a priority?
28 A Well, I was struck -- when reading about the FLDS
29 and Bountiful I was struck that there too they do
30 the same thing. They really discourage all their
31 people including the women to look for love.
32 They're not supposed to marry out of love. The
33 same thing goes on in the community of Bountiful
34 from what I have read.
35 Q What about the fourth community, the Jewish
36 community you're familiar with?
37 A Well, I don't have any first-hand experience in
38 looking at a Jewish culture, the whole community
39 that follows polygamy, because I just knew one
40 person who grew up in this way and, you know, you
41 can't visit any of these communities nowadays. I
42 haven't been to Yemen.
43 Q And so you haven't studied any literature, in
44 other words, that talks about the presence or
45 absence of romantic love amongst those
46 communities?
47 A Oh, yeah. It's also true that traditional Jews
14
1 de-emphasize romantic love. Yeah, that's also

2 true.
3 Q Continue. I'm sorry to interrupt you, but you
4 mentioned something and I wanted to make sure that
5 we covered everything.
6 A There was one more institution I did not put in my
7 original report which I would like to add, and
8 that's labour force participation on women and job
9 opportunities for women.
10 So polygamous societies tend to also limit
11 the opportunities women have outside the home to
12 make a living. And for example, among the Kanuris
13 of Nigeria that I studied no women were in the
14 labour force. It was absolutely not part of the
15 option that women had. And we see in Saudi Arabia
16 for example, other country that has plenty of
17 polygamy, we do see women are very limited in
18 their opportunities in the labour force. So this
19 is a common theme.
20 And I am done with the list of institutions
21 that are associated with polygamy from a
22 structural point of view because the man in the
23 polygamous societies want these institutions to
24 help them control women.
25 In addition to that the original list I had
26 under heading C also included -- often observed
27 consequences of polygamy, and these are jealousy
28 among women, very prevalent, and another negative
29 consequence is psychological health problems.
30 Many -- for example, Professor Al-Krenawi has
31 studied various Arab populations in the Middle
32 East including bedouins living in Israel and
33 Palestinians in Gaza and Jordan and in the West
34 Bank and he has found that they -- there is a high
35 prevalence of various mental illnesses among
36 polygamous wives. And he compared senior wives
37 with monogamous wives and he found that there was
38 a significantly higher incidence of depression, of
39 obsessive compulsive disorder and a number of
40 other mental illnesses among the senior wives in
41 polygamous societies, and he didn't find that just
42 in one group. Other sources that are included in
43 this case have mentioned his studies of the
44 bedouins, but he's more recently also reported on
45 this among the Palestinians of Gaza and the West
46 Bank.
47 Q Thank you very much. In heading D you identify
15
1 certain institutions that you say are aimed at

2 alleviating the problems caused by polygamy. What
3 would you ask the Court to take from an
4 identification of those institutions?
5 A Yeah, I think that in recognition of all the
6 problems that are associated with polygamy the
7 cultures that have polygamy have constituted a
8 number of additional institutions that help
9 alleviate the problems. So for example the Islam
10 prohibits Muslim men from marrying more than four
11 women. They limit polygamy. There are many
12 cultures that institute rotation. So to minimize
13 the jealousy among the co-wives the man has to go
14 through a regular schedule of sleeping with this
15 one on Monday and this one on Tuesday, et cetera.
16 There is encouragement of cooperation between the
17 co-wives that can also take an institutional side,
18 like some cultures give senior wives a supervisory
19 responsibility that helps manage the polygamous
20 household. And often you find that wives have
21 separate dwellings. This is also aimed at
22 reducing the jealousy and the problems associated
23 with polygamy.
24 Q Are there any others?
25 A Sororal polygyny. In many societies the co-wives
26 are real sisters.
27 Q In heading E you talk about other undesirable
28 consequences of polygamy and results for children.
29 A Right. Here I mention the fact that widowhood is
30 a common problem in polygamy, especially if nobody
31 is going to marry the older women who become
32 widows. In some African countries it's common
33 that the widows are assigned to a new husband
34 otherwise they may not have a source of survival.
35 It's also -- another consequence is that there
36 is limited education in polygamous societies
37 because again it's easier to control for -- for
38 men to control uneducated women so they attempt to
39 reduce the education that's available to women
40 especially. But these societies also have pretty
41 low levels of investment in human capital for all
42 children because they typically have very high
43 fertility and they spend their resources on
44 quantity of children rather than quality of
45 children. And it's also often observed that there
46 are many health problems with children in
47 polygamous societies, more so than in monogamy,
16
1 and that the mortality rates are higher.

2 Q Dr. Grossbard, under heading F you talk about
3 certain unintentional consequences from polygamy
4 that you've highlighted. Can you please take the
5 Court through those unintended consequences you
6 call them.
7 A Yeah, I think that were Canada to legalize
8 polygamy I think one can expect that this would
9 negatively affect educational achievements
10 wherever polygamy is found, in the urban centres
11 where polygamists immigrants would reside and
12 other communities that have polygamy.
13 It would also cause all women to be under the
14 constant threat that maybe their husband is going
15 to take another wife, and this is also a problem
16 associated with polygamy. And it's also possible
17 that men who will be deprived of wives, because
18 the wives will rather marry other men in the form
19 of polygamy, some of these men may become very
20 upset and it could cause crime, it could cause
21 some social problems among the men who wouldn't
22 find wives.
23 Q Thank you very much, Dr. Grossbard. Thank you as
24 well for taking us through your report. If you
25 could summarize your opinion in one sentence what
26 would your opinion be?
27 A That in the cultures and societies worldwide that
28 have embraced it polygamy is associated with
29 undesirable economic, societal, physical,
30 psychological and emotional factors related
31 especially to women's well-being.
32 Q Dr. Grossbard, earlier I brought your attention to
33 a report from Quebec and I asked that you advise
34 the Court in English the name of that report which
35 is in French?
36 A Okay. Well, first of all, let me translate just
37 the title of this report. "Avis" in French means
38 "opinion." So this is an opinion about polygamy
39 and the rights of women by the council about the
40 status of women in Quebec. This report has been
41 officially endorsed by the government of Quebec.
42 And if you look at it from a perspective of
43 political economy what that indicates is that
44 women in Quebec are sufficiently concerned about
45 the possibility that polygamy would become more of
46 a reality in their lives to have organized
47 politically to prepare this report. This is a
17
1 very well-written and thought-out report that

2 included the cooperation of many women. I don't
3 think there were any men among the authors. I
4 think that's not a coincidence that women
5 organized to get this report done, to get this
6 report approved by their government because women
7 are the principal potential victims of polygamy as
8 an institution. And we observe, not only in
9 Quebec but in many other instances, that women
10 organize politically to fight polygamy.
11 One example of that that I read about while
12 preparing for this presentation is the suffrage
13 organizations in the United States in the 19th
14 century. I read the affidavit and report by Marta
15 Ertman and she mentioned that in the 19th century
16 there were two organizations fighting for suffrage
17 in the US, the NSWA and the ASAWA, and one of them
18 didn't even want the women from Utah, where
19 polygamy was practiced at the time, they didn't
20 even want them to participate. They said, you
21 know, we want nothing to do with polygamy.
22 The other organization accepted the women of
23 Utah conditional on their eliminating polygamy
24 within ten years that they got the right to vote.
25 The women of Utah got the right to vote in 1870.
26 So this particular organization, the NSWA, told
27 them if you don't get your act together and you
28 don't eliminate polygamy you can't come to us
29 anymore. And so they were banned and they didn't
30 eliminate polygamy obviously in Utah, so they were
31 banned from that organization. They were not
32 allowed to attend anymore. So I think that that's
33 another very real example of using political
34 behaviour, in this case the suffrage movement
35 which was representing the rights of women in the
36 political area, and they were taking a very strong
37 stand against polygamy just like the women of
38 Quebec. And in Quebec polygamy is a much more
39 real thing for urban women than it is here because
40 a lot of African immigrants come to Quebec and
41 practice polygamy.
42 Q Do you have any other examples that you found in
43 the report of that kind of political economic
44 action?
45 A Yeah, the Quebec report contains a total of -- let
46 me count them exactly -- the total number of
47 chapters that they have is eight chapters, and out
18
1 of these eight chapters they devote a whole

2 chapter, chapter 6, on polygamy in the context of
3 immigration in the case of France.
4 Q And what happened there?
5 A What happened is that in 1980 the French
6 government allowed family reunification for
7 African immigrants with polygamous households, so
8 what that led to is immigration of many polygamous
9 households to France. However, by 1993 the French
10 government passed the Pasqua law which did not
11 allow any immigrant to stay in the country if he
12 had more than one legal wife.
13 Q Are there any other examples of this kind of
14 activity in that report?
15 A I think that's a unique example of a country that
16 changed its mind within a short period of time
17 about letting -- you know, whether immigrants are
18 allowed to bring more wives than one or not.
19 Even though this -- there's been a lot of
20 action by the French government on this matter.
21 It's estimated that there may be as many as
22 200,000 people in France who belong to polygamous
23 households according to this report.
24 Q Does the report address the circumstances that led
25 to the enactment of the new legislation?
26 A Yes, the reason the 1993 legislation was passed is
27 that the French realized that there were many
28 harms that were associated with the influx of
29 polygamous families within urban France, namely
30 there were many cases reported of violence against
31 women, of women imprisoned in their homes, of
32 conflicts among women and of crime especially
33 among the youth growing up in polygamist
34 households.
35 Q And what is the conclusion of this report? What
36 does the -- what is the conclusion made up of?
37 A Well, the recommendations of the French report
38 from Quebec include three components, a legal
39 component which I would like to skip because it's
40 so far from my own expertise, the immigration
41 component and the social component.
42 So in terms of immigration component they
43 propose that Canada and even more so Quebec must
44 refuse admission to any immigrant person engaged
45 in a polygamous union. And another recommendation
46 regarding immigration is that they want to
47 reinforce the rule permitting nationality which
19
1 was obtained under false declarations concerning

2 polygamy. They want to withdraw -- okay, so they
3 want to withdraw nationality if people lie about
4 whether they're polygamous or not. And in France,
5 by the way, there are very high fines and one year
6 of prison if somebody is caught on that crime
7 according to the Pasqua law.
8 Then there is a number of social component,
9 propositions. 6, exercise a greater vigilance in
10 regard to private school confessions of all
11 origins to ensure three conditions are met. And I
12 won't get into the details of these conditions.
13 7, assure adequate training of social workers
14 active in these communities because the -- based
15 on the experience of France and some experience in
16 Canada in Quebec social workers are just not
17 prepared to cope with all the problems associated
18 with polygamy.
19 Number 8, actively promote the rights of women
20 and children particularly among new immigrants and
21 members of communities where polygamy is allowed.
22 Number 9, integrating into existing programs
23 a component aimed at assuring the protection of
24 women and children living in polygamous
25 households.
26 10, offer support to women and adolescents
27 who wish to leave the polygamous household. And
28 there is one more recommendation, needs to
29 establish forums for discussion with -- anyways I
30 will let you read the report yourself.
31 Q Sure. And I'm not asking you to read it for the
32 Court, but I would ask you to do this,
33 Dr. Grossbard. Would you express an opinion about
34 the information contained in the report that led
35 to those recommendations. In other words, is it
36 your opinion that the information contained in the
37 report is consistent with your research with
38 respect to the polygamous communities in the world
39 that are reviewed in this report?
40 A Yeah, one reason I read this whole report in its
41 entirety is that, even though I didn't even know
42 it was part of the documents that the Court
43 collected, is that I thought -- I looked at the
44 report and I found it very well written, very well
45 researched and I could not find anything in this
46 report that I had a problem with.
47 Q Thank you very much. Dr. Grossbard, have you had
20
1 an opportunity to read the report of Professor

2 Campbell?
3 A Yes.
4 Q And to review her testimony from last week?
5 A Yes, I have.
6 MR. DICKSON: I object. I haven't objected so far but
7 we have gone very far outside of Professor
8 Grossbard's report affidavit. We have had no
9 indication whatsoever, no notice that Professor
10 Campbell's affidavits would be touched upon. This
11 is just sort of surprise and ambush.
12 In the last day -- last night we've received a
13 number of documents and that was fine. I found
14 that that was enough time to prepare, but this is
15 the first I've heard of this and I object.
16 THE COURT: Okay. Well, it's rebuttal, or it's reply
17 expert testimony, but normally you should try to
18 give your friend as much notice as possible.
19 MR. CHIPEUR: Thank you very much, sir. And I take the
20 criticism and I think it is certainly well placed.
21 I have to say that our witness only had an
22 opportunity to read testimony from last week
23 yesterday and she brought to our attention certain
24 opinions she had about that testimony, and so I
25 only made plans to have her address Dr. Campbell's
26 testimony based upon yesterday.
27 Now, I'm happy to bring Dr. Grossbard back for
28 cross-examination at a later date if there's any
29 prejudice to my friend. But certainly all -- let
30 me just tell you what I intend to do here so I can
31 tell my friend. I simply want to ask
32 Dr. Grossbard to comment on the literature review
33 that Dr. Campbell did and I want to ask her if she
34 believes it's complete and then I want to ask her
35 whether there is any other information that she
36 believes the Court should have that would be
37 relevant to the questions addressed in
38 Dr. Campbell's literature review. And again this
39 is just something that we came upon late yesterday
40 afternoon and evening when Dr. Grossbard advised
41 us of her opinion with respect to that testimony.
42 And I should have advised my friend at that time
43 that we would be asking questions about
44 Dr. Campbell's report but it did slip my mind and
45 I was focussed on preparation and that is why we
46 did not give more adequate notice
47 THE COURT: Anything else, Mr. Dickson?
21
1 MR. DICKSON: My Lord, I'm in your hands. You know,

2 it's not a point on which I'm going to pound
3 tables, but they have had Professor Campbell's
4 second report since October 15th and obviously
5 it's there that the detailed literature review is
6 done. It wasn't in her testimony of last week
7 that she really set out a detailed literature
8 review; it's in writing. And the reason that we
9 have done the exchange of affidavits in this
10 schedule is just to provide an opportunity for
11 everybody to comment, and in my view this is far
12 too late. I mean, here we are in the examination
13 and it's not a practice that should be adopted.
14 Thank you.
15 THE COURT: Okay. Well, I'm going to allow it to be
16 asked and answered but if there is any prejudice
17 felt by the amicus and Dr. -- or Professor
18 Campbell that can be the subject of future
19 submissions.
20 MR. CHIPEUR: Thank you.
21 THE COURT: Including I understand the possibility that
22 Dr. Grossbard would come back for further
23 cross-examination.
24 MR. CHIPEUR: And Chief Justice, in light of my
25 friend's concern I am not going to ask
26 Dr. Grossbard to express any opinions with respect
27 to Dr. Campbell's report, I am simply going to ask
28 her whether she would have any further literature
29 that would be relevant to the literature review
30 that Dr. Campbell made that would be relevant and
31 of assistance to the Court and I will then end the
32 examination.
33 THE COURT: Thank you. Go ahead. You can answer that,
34 Dr. Grossbard.
35 MR. CHIPEUR:
36 Q Dr. Grossbard, I am going to file two exhibits
37 with the court and then I'm going to ask that the
38 Court show -- that the clerk show you those
39 exhibits and then I'm going to ask you a question
40 about that.
41 The first exhibit to be filed is a document
42 called "The Academic Achievement of Children from
43 Monogamous and Polygynous Families" from the
44 Journal of Social Psychology. Professor Cherian
45 is the author and I am providing the clerk with a
46 copy and extra copies for the Court.
47 And Dr. Grossbard, I am giving you --
22
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
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.
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
1 I would like to see more statistics on

2 mortality, child mortality in particular. And I
3 would have liked to have seen more statistics on
4 labour force participation of men and women
5 comparing Bountiful with surrounding communities
6 MR. CHIPEUR: Thank you very much, Dr. Grossbard.
7 Dr. Grossbard, would you please answer the
8 questions of my friends.
9 THE COURT: And just before we get into cross, Doctor,
10 can you tell me does the Quebec report estimate
11 the population of polygamous Africans in Quebec?
12 THE WITNESS: Can you just speak a little bit closer to
13 the microphone.
14 THE COURT: Sorry, the Quebec report, does it estimate
15 the amount of African polygamists in Quebec, that
16 immigrated into Quebec? Does the Quebec report do
17 that?
18 THE WITNESS: The Quebec report mentions some facts.
19 THE COURT: What was the population approximately, do
20 you know? Do you know the population
21 approximately in Quebec of polygamists?
22 THE WITNESS: I can't hear you.
23 MR. CHIPEUR: Do you want me to --
24 THE COURT: I'm troubled. I thought my voice would be
25 magnified. Can you -- does the report tell us the
26 population of African polygamists many Quebec?
27 THE WITNESS: No. The report does not include
28 statistics on the prevalence of polygamy in
29 Quebec.
30 THE COURT: And is the polygamy discussed in the report
31 cultural or religious-based?
32 THE WITNESS: My understanding that in Quebec the
33 principal source of polygamy is immigration from
34 Africa and from Muslim countries.
35 THE COURT: So in Africa it would be cultural,
36 cultural-based polygamy in Africa; is that fair?
37 Is it fair that there is cultural-based polygamy
38 in Africa?
39 THE WITNESS: Yeah, I would call it cultural based.
40 THE COURT: But in the Muslim countries is there a
41 religious basis to the polygamy?
42 THE WITNESS: Well, Islam actually does not encourage
43 polygamy. It discourages polygamy. It tolerates
44 it. So most Muslims who are polygamists are not
45 doing so for religion reasons, they do it despite
46 their religion.
25
Cross-exam by Mr. Dickson
1 THE WITNESS: There is actually a whole chapter on the

2 Islam and polygamy in this report.
3 THE COURT: Thank you. We'll start cross after the
4 break. Who is going to be going? You're going to
5 be going, Mr. Dickson?
6 MR. DICKSON: That's correct, My Lord.
7 THE COURT: Who else?
8 MR. DICKSON: Looks like no one else, My Lord.
10
11 (STOOD DOWN)
12 (MORNING RECESS)
13
14 THE CLERK: Order in court.
15 THE COURT: Thank you. Mr. Dickson.
16
17 Shoshana Grossbard, a
18 witness for the Christian
19 Legal Fellowship,
20 recalled.
21
22 CROSS-EXAMINATION BY MR. DICKSON:
23 Q Dr. Grossbard, my name is Tim Dickson. I'm
24 counsel for the amicus curiae in this reference.
25 Dr. Grossbard, you referred many times in
26 your report and in your testimony to the Kanuris
27 of Nigeria. Did you conduct field research on the
28 Kanuris?
29 A No.
30 Q You haven't conducted field research in Bountiful,
31 British Columbia?
32 A No.
33 Q Prior to your work in this case I believe you
34 testified you were not aware of the FLDS community
35 in Bountiful British Columbia?
36 A That's correct.
37 Q You haven't conducted field research on polygamy
38 in Canada?
39 A In Canada?
40 Q Canada.
41 A No.
42 Q Or in North America?
43 A I don't conduct any field research. Economists
44 tend to use secondary data, to do analysis of data
45 collected by others.
46 Q Fair enough. I would like you to turn if you
47 could to page 1 of your report. So that's Exhibit
26
1 B to your affidavit. I would like to ask you

2 about some of the points you make under heading B
3 "Economic Analysis." In paragraph A in the third
4 sentence you say "it follows from Becker's demand
5 and supply analysis of marriage markets that when
6 polygamy is permitted there will be a larger
7 demand for wives." Will you agree with me that
8 that sentence assumes that if polygamy is
9 permitted more people will actually wish to take
10 it up?
11 A Well, it just assumes that if polygamy is
12 permitted some men take advantage of it and
13 therefore they enter into the marriage market more
14 than once, so they have a demand not only for a
15 first wife but also for subsequent wives.
16 Q Yes. That's right. That there is more takeup of
17 wives into polygamy.
18 And so if polygamy were permitted but no more
19 people, men and women, wished to participate in
20 polygamy the demand for wives would remain the
21 same; is that fair?
22 A No. As long as some people -- some men marry more
23 than one wife that will lead to a larger demand
24 for women than if all couples are monogamous.
25 Q I suppose the point I'm asking about is that what
26 creates the greater demand for women is actually
27 men wishing more wives in polygamy; is that fair
28 enough?
29 A Yeah, demand is always a willingness to "buy." So
30 willingness and ability to buy. So if there are
31 any men who society who are able and willing to
32 have more than one wife they will add to the
33 demand.
34 Q Yes. But what increases demand for wives is
35 really a demand for more polygamous relationships;
36 is that so?
37 A Yeah, for any polygamous relationships.
38 Q And you'll agree with me that polygamy exists in
39 Canada and the United States even though it is
40 criminalized?
41 A Yes, it exists.
42 Q In your report that you have written for the court
43 you have not set out any research that shows that
44 there actually would be an increase in polygamy in
45 Canada if polygamy were permitted; is that fair?
46 A I haven't said so but it's implicitly true. I
47 certainly agree with the statement. If polygamy
27
1 were permitted there would be more polygamy.

2 Q Right. That does appear to be implicit in your
3 report, that assumption, and my point here is you
4 don't cite any research or evidence for that
5 assumption?
6 A No.
7 Q And to put the question from the other side, you
8 haven't set out any evidence in your report that
9 prohibiting polygamy actually decreases the
10 incidence of polygamy in Canada?
11 A I don't write that.
12 Q No. If you could turn to page 2 of your report,
13 please. I want to ask you about your paragraph C
14 at the top of the page on page 2.
15 A M'mm-hmm.
16 Q And you say in this paragraph that the more
17 time-intensive household production is the more
18 polygamy there is likely to be; is that so?
19 A Yes.
20 Q And I take your point as being that the more
21 industrialized a society is, the more commercial a
22 society is, the less polygamy there will be in
23 that society; is that so?
24 A It is one implication. One implication is that in
25 an industrial society there will be less demand
26 for wives than in an agricultural society with
27 less access to commercial goods, but another
28 implication is that in societies where people want
29 more children there where large families are
30 desired more often that also adds to the demand
31 for wives.
32 So it's not only -- what I call home
33 production is not simply the production of goods
34 and services that could also be obtained
35 commercially, it's also the production of more
36 intangible products such as children and a home.
37 Q Yes. And as I read this paragraph relating to the
38 relationship between a society being more
39 commercial and more industrial and there being
40 less polygamy, Canada and the United States are
41 industrialized and commercial societies?
42 A Right.
43 Q And what I understand that means for our purposes
44 here is that more of the goods and services that a
45 household may want or need are available
46 commercially and so fewer of them need to be
47 produced within the home; is that right?
28
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
1 start of the paper.

2 A Okay.
3 Q And let me try to summarize the finding that they
4 reach, if you will, and then I'll allow you to
5 comment on it.
6 A Okay.
7 Q They are conducting an economic analysis as well,
8 and their conclusion -- their reasoning is that in
9 poor countries where wealth is based more on such
10 things as land and less on human capital men are
11 less able to educate their children and invest
12 them with human capital and so they focus on
13 raising many children and they are therefore drawn
14 to polygyny. And as development increases there
15 is more ability to raise educated children and
16 invest them with human capital and so men seek out
17 wives who can help them to do that and they're
18 therefore naturally inclined to monogamy. And
19 they conclude on page 349 -- you can turn to it if
20 you wish, I'll just read it out, "that personal
21 incentives to become polygynous decline naturally
22 with development."
23 Is that a fair summary of their paper?
24 A Yes, this is what they write but I want to
25 emphasize that this is a purely theoretical paper.
26 These economists are at the level I was in the
27 1970s and haven't evolved past the stage of pure
28 theory.
29 Q Yes, and if you turn to page 5 of your report,
30 Dr. Grossbard, please, under heading E,
31 paragraph B you cite there that paper?
32 A Yes, I do.
33 Q That's right. You were relying on that paper for
34 the proposition you make there?
35 A Right. I'm relying for -- part of their argument
36 I agree with, but that particular conclusion about
37 the evolution of polygamy as a function of
38 economic development, they haven't tested that.
39 They have just -- it's just a hypothesis that
40 derives from their reasoning.
41 Q I would like you to turn -- sorry, back in your
42 report to page 2. To heading C.
43 A Yes.
44 Q And that is "Evidence on Institutions Associated
45 with Polygamy that Reduce Women's Well-Being."
46 And under this heading you discuss a number of
47 institutions that you say are associated with
30
1 polygamy and which are essentially bad for women;

2 is that right?
3 A That are essentially what?
4 Q Bad for women.
5 A Yes.
6 Q Yes. And as you say in your paper in the
7 introductory paragraph, we do not know whether any
8 of these institutions that you say are bad for
9 women are caused by polygamy?
10 A Right.
11 Q We don't know whether it is rather these
12 constitutions that cause polygamy rather than the
13 other way around?
14 A Right, they just -- these institutions are
15 empirically associated with the presence of
16 polygamy.
17 Q And again we don't know whether polygamy causes
18 these institutions or whether these institutions
19 cause polygamy, or whether they're both caused by
20 other factors; is that fair?
21 A Exactly.
22 Q Yes. And you say that that point is an important
23 caveat regarding all the points in this section?
24 A Yes.
25 Q Yes. In the last sentence of that first paragraph
26 under heading C you say this:
27
28 Nevertheless, it is very revealing that
29 cross-culturally polygamy is associated with
30 a large number of features that seem
31 undesirable either from a strictly female
32 perspective or from the perspective of
33 society's best interest.
34
35 And I just put it to you that when you say it
36 is very revealing you don't mean that it is
37 revealing of some causal relationship between
38 polygamy and these institutions, since you've just
39 told us that we don't know that it is causal?
40 A Well, actually I do think that the juxtaposition
41 of so many institutions that are bad for women
42 with polygamy, even though each one of these
43 institutions by itself can't prove that it's
44 caused by polygamy, but once you look at the
45 picture and you see more than ten different facts
46 that are undesirable for women associated with
47 polygamy, I think from the juxtaposition of all
31
1 these institutions and consequences we can

2 conclude more than we can from the single
3 association of one institution and polygamy. So I
4 would -- I would conclude -- I conclude that there
5 is some degree of causality here and that polygamy
6 actually causes some of these institutions to be
7 created.
8 Q You don't know which institutions are caused by
9 polygamy?
10 A No, that I couldn't say which one in particular,
11 but just the fact that so many of them are present
12 in cultures that also have polygamy indicates
13 that -- my conclusion is that men in polygamous
14 societies will manipulate the social institutions
15 in ways that will facilitate their control of
16 women and that will prevent women to capture what
17 would otherwise be their value in marriage
18 markets.
19 Q And as you say in that introductory paragraph it
20 is possible that both polygamy and these other
21 institutions are caused by other factors. You say
22 that, yes?
23 A Right.
24 Q And I want to return to the Gould paper, just the
25 general concept it discusses. Again, the thesis
26 in that paper is that there is an inverse
27 relationship between the degree of development of
28 a society and the amount of polygamy in that
29 society; right?
30 A Correct.
31 Q And so there will be, on their thesis, more
32 polygamy in less developed societies?
33 A Yes.
34 Q And would you agree with me that less development
35 in a society might also result in poorer health?
36 A Yes.
37 Q Lower education?
38 A Yes.
39 Q Lower life expectancy?
40 A M'mm-hmm.
41 Q Perhaps fewer civil liberties?
42 A Yes.
43 Q Perhaps more gender inequality?
44 A M'mm-hmm.
45 Q I want to ask you about what you write in
46 paragraph A on page 2 under that general heading
47 on C?
32
1 A Are you already changing the topic, because I want

2 to address what you just mentioned.
3 Q Certainly.
4 A It doesn't follow from the fact that economic
5 development, for example, is associated with
6 higher mortality and lower educational levels. It
7 doesn't follow that polygamy is -- couldn't
8 possibly cause even lower levels of education or
9 higher levels of mortality, because if we look
10 within countries of similar economic development
11 we do see that for example bride price is found in
12 parts where you have -- cultures that have
13 polygamy but it's not found in countries and
14 cultures that might be just as poor but they don't
15 have as much polygamy or don't have it at all.
16 So just because you have one factor that is
17 associated with economic development it doesn't
18 mean that another factor is not associated with
19 it. So just because I agreed with you that these
20 various institutions are also associated with low
21 levels of economic development doesn't prove that
22 polygamy isn't possibly causally related to so
23 many of these institutions.
24 What I can't say with accuracy, yes, because a
25 particular culture has female circumcision that is
26 because they have polygamy. I can't say that.
27 Q Right.
28 A But I can say if you allow polygamy you're going
29 to eventually see things happening in society that
30 help men control women such as female
31 circumcision, easy divorce, bride price, arranged
32 marriage, et cetera. Some of these things will
33 happen.
34 Q Let me turn now to paragraph A, "Early Marriage,"
35 under heading C. Essentially in this paragraph
36 you say that polygamy is characterized by large
37 age differences between grooms and brides;
38 correct? And you say that in the last sentence of
39 this paragraph "early marriage increases the
40 likelihood of early widowhood and financial
41 hardship for women"; yes?
42 A M'mm-hmm.
43 Q Financial hardship for women in polygamous
44 relationships is a negative effect?
45 A Financial hardship is a negative effect, sure.
46 Q Would you agree with me that if a male breadwinner
47 in a polygamous family is removed from the family
33
1 and precluded from working, such as because of

2 imprisonment, that would increase the likelihood
3 of financial hardship for the women in that
4 polygamous relationship?
5 A Yes, that's true.
6 Q And that would be negative?
7 A M'mm-hmm.
8 Q I will turn to paragraph B on page 2. And here
9 you discuss arranged marriage. I note you do not
10 point to any source for your statements in this
11 paragraph. What is your source?
12 A Is there a particular sentence, because I mention
13 a number of things in this paragraph. Is there a
14 particular sentence that you would like the source
15 for? I could try.
16 Q Well, none of the sentences have any source
17 attributed to them. Can you identify any source
18 for us?
19 A Okay, so I will just read the paragraph:
20
21 If we compare monogamous countries with
22 countries where polygamy is legal we observe
23 a much higher frequency of arranged marriage
24 in polygamous societies.
25
26 This is based on an intercontinental comparison in
27 Asia and Africa. You have a majority of societies
28 using arranged marriage. In Europe and the
29 Americas you have much less arranged marriage, so
30 since those are the continents with more polygamy,
31 you can generalize and say that is their
32 association.
33 Q Is this paragraph based on your general
34 understanding of having read various sources over
35 the years or did you refer to a particular source
36 in drafting this paragraph?
37 A This is based on the knowledge I have of where
38 polygamy is found and where arranged marriages are
39 found and I read about both of these topics on a
40 regular basis as part of my scientific activities.
41 Q Would you agree with me that arranged marriages
42 sometimes occur in monogamy?
43 A Sure.
44 Q And you say in this paragraph that you have
45 compared monogamous countries with countries where
46 polygamy is legal and you have found that there is
47 a much higher frequency of arranged marriage in
34
1 polygamous societies; is that true? I mean, that

2 is what you say?
3 A Can you repeat that last sentence.
4 Q Sure. I'm just trying to summarize what you say
5 in this paragraph. You note that you have
6 compared monogamous countries with countries where
7 polygamy is legal?
8 A M'mm-hmm.
9 Q And you have found that there is a higher
10 frequency of arranged marriage in the polygamous
11 societies?
12 A Yes.
13 Q Within the polygamous societies, those where
14 polygamy is legal, have you compared the numbers
15 of arranged monogamous marriages versus arranged
16 polygamous marriages?
17 A No, but I don't think that comparison would be
18 very useful because my analysis here is at the
19 macro level, at the society's level, and I'm just
20 saying in those societies where polygamy is
21 allowed you have a problem that if marriages would
22 be free men would have to pay a lot to get women
23 so they do all kinds of things like arranging
24 marriages so to avoid having to pay too much for
25 women.
26 Q You say in the second sentence that large
27 proportions of young couples in Africa and the
28 Indian subcontinent have arranged marriages. Of
29 those arranged marriages would you agree that many
30 would be monogamous?
31 A Yeah, but it doesn't matter. As long as polygamy
32 is allowed in a particular culture or country it
33 will add to the demand for women and therefore if
34 you let the market be free it would -- it would
35 increase the market value of women, so men
36 institute arranged marriages to avoid having to
37 pay too much for women.
38 Q I hear what you say, and just going back to the
39 beginning of the answer you would agree that many
40 of the arranged marriages would be monogamous?
41 A Yes.
42 Q Would most of them be monogamous, you expect?
43 A It would depend on the country.
44 Q Well, turn to page 3 now, and your paragraph D on
45 divorce.
46 A Okay.
47 Q And in this paragraph you say that there is an
35
1 association between easy divorce and polygamy?

2 A Yes.
3 Q And that easier divorce tends to be
4 disadvantageous to women?
5 A Yes.
6 Q And by easier divorce you mean -- you include no
7 fault divorce such as in California and British
8 Columbia?
9 A Yes.
10 Q And are you saying that no fault divorce is bad
11 for women?
12 A It tends to be bad for women. You can't take it
13 in isolation. It's the combination of no fault
14 divorce or easy divorce and the rights upon
15 divorce in terms of property settlements and
16 custody arrangements. It's the combination of how
17 easy it is to divorce, and also an easy divorce
18 means different things in a society where most
19 women are employed in the labour force as opposed
20 to the Kanuris of Nigeria where none of the women
21 are in the labour force but to them when the men
22 divorces them the women are pretty much left on
23 the street unless they find another man to marry
24 them.
25 Q In North America in terms of the numbers of
26 divorces, would you agree with me that there would
27 likely be vastly more monogamous divorces than
28 polygamous divorces?
29 A Sure.
30 Q And turning to paragraph D on female circumcision.
31 In this paragraph do any of the sources you cite
32 link the practice of female circumcision to the
33 practice of polygamy in Canada?
34 A Can you just repeat the end of your question.
35 Q Certainly. Do any of the circumstances you cite
36 in paragraph E link the practice of female
37 circumcision to the practice of polygamy in
38 Canada?
39 A No, these sources are not about Canada. However,
40 female circumcision is performed in North America.
41 I have seen articles about it for the United
42 States. I assume that there are also cases of
43 female circumcision in Canada among immigrants,
44 mostly immigrants from Africa.
45 Q Turning to paragraph F on the same page discussing
46 perda. In the last sentence of the paragraph
47 which is over the page, Professor, you say "the
36
1 Canadian polygamist society of Bountiful does not

2 have perda but it remains distanced from the rest
3 of Canadian society." A feature of perda is that
4 the women are not allowed to go out but the men
5 are; is that fair?
6 A Correct.
7 Q It's the seclusion of women?
8 A Yes.
9 Q And as you say that doesn't seem to be a feature
10 of Bountiful based on the research you have
11 consulted. That is not a feature of Bountiful?
12 The seclusion of women but not the seclusion of
13 men, that is not a feature of Bountiful on the
14 research you have consulted?
15 A I don't know enough about Bountiful to support
16 that statement. It's just my impression that some
17 of this might be applicable to Bountiful, but I'm
18 not an expert on Bountiful.
19 Q Fair enough. And in order to learn about
20 Bountiful you consulted Angela Campbell's writings
21 in 2005? I note you cite her as your source.
22 A I cited her not so much for what she had to say in
23 2005 about Bountiful. I think I cited her more --
24 can you show me where I cite her?
25 Q Sure, it's at the end of the sentence we just
26 discussing. It says "Campbell 2005." Top of page
27 4?
28 A Oh, yeah. I guess I did learn about this from
29 Campbell. I also read the parts of her 2005
30 report on other cultures.
31 Q Turning to your heading D. In this section you
32 discuss --
33 A No, this is the capital D, right, on page 4?
34 Q Yeah. Sorry.
35 A Okay.
36 Q On page 4, the big capital D. "Institutions found
37 in polygamous societies aimed as alleviating the
38 problems created by polygamy: Indirect
39 recognition that there are such problems." The
40 title of that section suggests, here you discuss
41 institutions some polygamous societies have
42 developed to address challenges that can arise in
43 polygamy and you say essentially that this shows
44 that there are problems with polygamy; is that
45 fair?
46 A Right.
47 Q And I'm going to put it to you that the same
37
1 argument could as easily be made about monogamy;

2 is that fair?
3 A No, all these institutions that are mentioned
4 under section D are specific to polygamy.
5 Prohibition on the number of wives. That's
6 obviously not applicable to monogamy. Rotation of
7 wives. That's about more than one wife.
8 Encouraging cooperation among the wives. Separate
9 dwelling for the wives. And sororal polygamy.
10 All these five items are specific to polygamy.
11 Q Yes. And will you agree with me that in the
12 monogamous world the institution of divorce was
13 developed in order to deal with the problem of bad
14 marriages?
15 A Well, divorce was developed to deal with bad
16 marriages in all societies.
17 Q Because there are bad marriages in all societies?
18 A Yes.
19 Q And will you agree with me that there are marriage
20 counsellors in North America to whom you can go
21 with your partner, your spouse, when you're having
22 a difficult time?
23 A Sure.
24 Q And that marriage counsellors are often probably
25 almost always treating people in monogamous
26 relationships?
27 A I have no information on how many people in
28 polygamous households go to a marriage counsellor.
29 Q You will agree with me that it's not uncommon for
30 people in monogamous relationships to go to a
31 marriage counsellor if they're having trouble?
32 A Yeah.
33 Q And will you agree if you walk into a bookstore
34 you can find whole racks of self-help books on
35 relationships?
36 A Yes.
37 Q And would you agree with me that the kind of
38 relationships they're talking about there are
39 almost always monogamous?
40 A From the ones I've seen, yes.
41 Q And indeed we've -- sometimes in monogamous
42 relationships romance in the relationship can flag
43 and it needs to be sparked again and we have an
44 institution called Valentine's Day?
45 A Yes.
46 Q To re-emphasize the romantic side of monogamy?
47 A Yes, I mentioned earlier that western societies
38
1 tend to emphasize romantic love and Valentine's

2 Day is one of the institutions that reinforces
3 that.
4 Q And I don't want to belabour the point --
5 MR. JONES: Please.
6 MR. DICKSON:
7 Q It seems kind of small, but we re-emphasize
8 because sometimes we need to re-emphasize a
9 romantic love in a monogamous relationship.
10 A Yeah, and polygamous societies I doubt that
11 Valentine's Day is -- or the equivalent of
12 Valentine's Day is as common because they don't
13 want people to be too focussed on romantic love.
14 Q Perhaps the absence of Valentine's Day in polygamy
15 is a point in its favour.
16 MR. JONES: I think we learned more about Mr. Dickson.
17 MR. DICKSON:
18 Q And would you agree with me that in monogamous
19 families cooperation is also encouraged?
20 A Yes.
21 Q I want to turn to heading E of your report on
22 page 5. And just turning again to paragraph B on
23 children's human capital. That's toward the top
24 of the page.
25 A Yes.
26 Q You say that -- again we've been here before,
27 "polygamous men tend to spend their money on
28 having more children and investing little in their
29 education as opposed to having fewer children with
30 higher levels of human capital." And you cite the
31 Gould paper for that proposition. And I don't
32 read the Gould paper as saying that polygamy
33 causes less investment in children. Rather I see
34 Gould as saying essentially the reverse, that
35 polygamy arises in less developed societies
36 because human capital is under-valued and rich men
37 are not able to invest in their children and
38 produce children with high human capital.
39 A Well, Gould et al. mentions some sources
40 documenting that countries with polygamy have --
41 there are children in those countries have lower
42 levels of human capital, so I was referring more
43 to this as a source for additional research that's
44 more of an empirical nature that documents that
45 there is this connection between polygamy and
46 lower levels of human capital in children.
47 Q Yes. You're saying that, look, in this polygamous
39
1 society over here there is, as I say, polygamy and

2 a low investment in human capital in children.
3 And my point is that I see the Gould report as
4 saying that there's less investment in human
5 capital because there's less development in that
6 society and less human capital that is valued.
7 And as a society becomes more developed and rich
8 men are able to invest in their children with more
9 human capital so do they trend to seeking one
10 monogamous wife?
11 A Yeah, well, my reason for citing this particular
12 article was not to endorse their theory. It was
13 more to refer to their sources of more detailed
14 information on the correlation and the association
15 between polygamy and low levels of human capital.
16 Q And indeed, though, when you look at the Gould
17 report you will agree with me that it is not
18 saying that polygamy causes lower investment in
19 children? That is not the conclusion reached in
20 the Gould report?
21 A I would have to reread the report to answer that.
22 MR. DICKSON: Thank you, Dr. Grossbard, those are my
23 questions.
24 THE COURT: Any redirect, Mr. Chipeur?
25 MR. CHIPEUR: No, Chief Justice.
26 THE COURT: Thank you, Dr. Grossbard, for coming.
27 You're excused.
28 So the timing is good and we have, is it
29 Dr. Woo.
30 MR. DICKSON: Yes, it's Professor Wu or Dr. Woo and he
31 is in the gallery, My Lord, and available to begin
32 testimony or we could take the lunch break and he
33 could begin.
34 THE COURT: We don't anticipate any problems concluding
35 with Dr. Wu today?
36 MR. JONES: No, apparently he has booked a
37 mid-afternoon flight. That might have to change
38 but aside from that as far as finishing him today
39 I think it's a done deal.
40 THE COURT: Okay. Let's take the luncheon break.
41 THE REGISTRAR: Order in court. Court is adjourned
42 till 2:00 p.m.
43
44 (NOON RECESS)
45
47 THE COURT: Mr. Dickson.
40
Zheng Wu (for the Amicus)
In chief on qualifcations by Mr. Dickson
1 MR. DICKSON: My Lord, the next witness is Professor

2 Zheng Wu and as you see he's standing in the
3 witness box.
4 THE COURT: Yes, thank you.
5 MR. DICKSON: And he will affirm.
6
7 Zheng Wu, a witness called
8 by the Amicus, affirmed.
9
10 THE CLERK: Please state your full name and spell your
11 last name for the record.
12 THE WITNESS: Zheng Wu. Last name is W-u, first name
13 is Z-h-e-n-g.
14 MR. DICKSON: My Lord, Professor Wu has sworn two
15 affidavits in these proceedings. His affidavit
16 number 1 is Exhibit 61 and affidavit number 2 is
17 Exhibit 72. I was concerned that you might not
18 have colour copies of his affidavits close at hand
19 and so I passed up colour copies.
20 THE COURT: All right. Thank you. So Exhibit Wu
21 number 1 is exhibit what?
22 MR. DICKSON: 61 and number 2 is 72.
24
25 EXAMINATION ON QUALIFICATIONS BY MR. DICKSON:
26 Q Professor Wu, you are a professor and the chair of
27 the Department of Sociology at the University of
28 Victoria?
29 A Yes, I am.
30 Q And you have been a professor there since 1992?
32 Q And have served as chair of the department since
33 2006?
35 Q And you have been the Director of the University
36 of Victoria Population Research Group since 2008?
37 A Yes.
38 Q And are you the Past President of the Canadian
39 Population Society?
40 A Yes.
41 Q And what does that society do?
42 A Well, it is a learned society. It's an
43 association of professional demographers and
44 population researchers and we hold annual meetings
45 and we published a journal called Canadian Studies
46 in Population. I am a -- serve as a member of the
47 editorial board of that journal, and we are also
41
In chief on qualifcations by Mr. Dickson
1 part of the Canadian Federation of Humanities and

2 Social Sciences.
3 Q And do you have a masters in sociology from the
4 University of Victoria?
5 A Yes.
6 Q And I believe you received your PhD in social
7 demography from the University of Ontario in 1992?
8 A That's correct.
9 Q And is your field essentially family demography?
11 Q How would you describe family demography?
12 A Well, I was trained as a demographer and family
13 demography generally covers events around family
14 events such as marriage, cohabitation, separation,
15 divorce, widowhood, childbearing, childrearing and
16 well-being of the family members.
17 Q And you set out some of your background in your
18 first affidavit which is Exhibit 61 and just
19 turning to paragraph 4 of that first affidavit you
20 state there that you have long-standing interest
21 and expertise in family demography, and is that
22 the case?
23 A Yes.
24 Q And you note there a book that you have written
25 Cohabitation, an Alternative Form of Family Living
26 and that was published by the Oxford University
27 Press in 2000 and what did that book concern?
28 What was the topic?
29 A The topic is cohabitation, an alternative form of
30 family living.
31 Q The title expresses it succinctly. And turning
32 to -- your CV is at Exhibit A of your affidavit?
33 A M'mm-hmm.
34 Q And turning to page 3 I note that you were a
35 member of Statistics Canada's National Advisory
36 Committee on Demographic Statistics. How long
37 were you a member?
38 A I was -- it was a three-year term. I was
39 appointed by the Chief Statistician of Statistics
40 Canada and my term ended this year.
41 Q Very good. And your publications are listed
42 beginning on page 5, you have written two books as
43 is noted there. One of them is the book we were
44 just discussing. And then down at the bottom of
45 the page you list a number of chapters in books
46 that you have written. The first one there is
47 your chapter is called "Changing Families" and
42
In chief by Mr. Dickson
1 that's in a text called Canada's Population in

2 2001?
3 A That's correct.
4 Q And turning over the page there's a text number 4
5 your chapter was called "Divorce and Repartnering"
6 and that's in a text called Families, Changing
7 Trends in Canada?
8 A That's right.
9 Q And how many articles in refereed journals have
10 you written?
11 A Well, based on this version of the CV a list of 45
12 articles, but this CV, I believe, was dated --
13 Q Was back in June?
14 A Yes. So I now have two more articles appearing --
15 forthcoming in refereed journals so I would say 47
16 published articles in the -- were published or
17 forthcoming articles in peer-reviewed journals.
18 Q And what topics do you deal with primarily in
19 those articles?
20 A Well, most articles are around the family
21 demography particularly about cohabitation and
22 marriage. Some on divorce. I also have a
23 long-standing interest in health and aging so I
24 published widely in those areas too. And more
25 recently I'm more into writing on immigration and
26 well-beings of the family members. More on the
27 health and the well-being and particularly a
28 little bit on the medical sociology. So I do
29 quite a bit on mental health now.
30 MR. DICKSON: Very well, My Lord, I tender Professor Wu
31 as an expert in family demography to give opinion
32 evidence on that topic.
33 THE COURT: Any submissions? No. Thank you. I'll
34 accept him on that basis, thank you.
35
36 EXAMINATION IN CHIEF BY MR. DICKSON:
37 Q Professor Wu, I turn first to your first affidavit
38 and at Exhibit B. You have appended there a
39 report called "Changing Patterns of Conjugal Life
40 in Canada." And there's a little asterisk at the
41 end of the title there that says "research
42 assistance was provided by Christoph Shamow and
43 gratefully acknowledged. Who was he and what was
44 his role in this report?
45 A Well, Chris Shamow is my doctoral student and he
46 has been my research assistant for many years and
47 I worked with him on this report. And his job was
43
1 to search literature, compile the literature and

2 assisted in the -- assembling the materials. But
3 I wrote the report. I am responsible for the
4 content of the report.
5 Q Very well. And turning to the substance of the
6 report what was the question that you were
7 addressing in this report?
8 A Well, the objective of the report is fairly modest
9 in a sense. I tried to develop a -- paint a
10 demographic profile of changes in conjugal life in
11 Canada in the last several decades. And the
12 report as I said was intended to be fairly brief
13 and using primarily data collected and published
14 by Statistics Canada. There are a few conclusions
15 I can draw from the report and one of them is that
16 marriage, although still valid as an important
17 social institution in Canada, has weakened over
18 the years as a social institution. And there are
19 a number of signs for this weakening including,
20 for example, the delay and decline in marriage and
21 fairly high level of -- sustained level or high
22 level of marital instability. And probably more
23 important is the rise in non-marital cohabitation
24 and we call it in Canada common-law unions.
25 I find that particularly this last sign, the
26 rise of cohabitation, really poses a serious
27 threat to the institution of marriage. The reason
28 is that it can become a substitute for legal
29 marriage, so that's sort of the signs of the
30 marriage weakening as a social institution.
31 Overall I find that the centrality of a
32 marriage as a defining characteristic of conjugal
33 life has declined and weakened, and overall there
34 has been a shift in the meaning of conjugal life
35 in Canada which is associated with decline in the
36 predominance of a marriage and also an increase in
37 the variations of conjugal relationships. These
38 demographic changes are partly the consequences of
39 our changing value system, our changing views and
40 attitudes towards conjugal life, marriage -- on
41 marriage and family life and also changes in the
42 gender roles in the society. So these are the few
43 main points I tried to demonstrate in this brief
44 report
45 Q Right. That's your summary and your conclusions
46 and your reasoning is set out in more detail in
47 your report?
44
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
1 for Justice Statistics there were about 75,000

2 incidents of violent crime were committed against
3 a family member in 2007, and among them about
4 40,000 were committed by a current spouse or a
5 common-law partner or a previous partner.
6 There were probably about 28,000 incidents of
7 violent crimes were committed by a current spouse
8 or a common-law partner.
9 There are also about 6,000 or 6,600 incidents
10 of violent crimes were committed against a child
11 within the family. One more finding is that
12 according to the 2004 general social survey about
13 7 percent of Canadians who are married living
14 common law or had a previous -- common law partner
15 experienced spousal abuse in the past five years.
16 Now, this amounts to about 650,000 women and
17 540,000 men -- male victims of spousal violence.
18 Q Very well. And would your expectation be that
19 these numbers relate mainly to monogamous
20 relationships?
21 A I would say so, primarily.
22 Q Turning to the next question just above
23 paragraph 9, that is how many gay and lesbian
24 persons there are in Canada. And briefly again,
25 if you will, what were your conclusions on that
26 question?
27 A Well, there are not many data sources in Canada on
28 gays and lesbians and according to the best
29 estimate I can find one estimate suggests there
30 were probably about 346,000, or 2 percent of
31 Canadians aged 18 to 59 identify themselves as
32 being gay, lesbian or bisexual. This is -- the
33 calendar year is around 2003 to 2005, this period.
34 This more specifically to break down this
35 number there were about 130,000 gay men, 59,000
36 bisexual men and 71,000 lesbian and 81,000
37 bisexual women. These are all men and women
38 between the age 18 to 59.
39 Q Very well. The next question is above
40 paragraph 16 and that is how many single parent
41 families are there in Canada, and there, what were
42 your -- what was your answer to that question?
43 A Well, the most reliable source for single parent
44 families comes from 2006 Canadian census, so
45 according to the 2006 Canadian census there were
46 about 1.4 million single parent families in Canada
47 in 2006. Among them 80 percent were or
46
1 1.1 million, a little over 1.1 is million, were

2 single mother families. The rest were single
3 father families, about 20 percent.
4 Q And the next question is how many single male and
5 female adults are there in Canada?
6 A Well, again perhaps the most recent and reliable
7 source is 2006 census. According to this census
8 there were about 4.8 million single men, or I
9 should say never married men, and 4.3 million
10 single/never married women age 15 and over living
11 in Canada in 2006.
12 Q That's a difference of about 550,000 men; is that
13 correct?
14 A That's about -- yeah, that's probably a bit over.
15 Q Roughly?
16 A Yeah.
17 Q As you note there that's for men and women aged 15
18 and over. And why the age 15?
19 A Well, traditionally I believe -- I need to confirm
20 this with Stats Canada -- the marital status
21 questions was only asked to Canadians who are
22 age 15 and over, so therefore the data on marital
23 status were not collected for Canadians younger
24 than age 15.
25 Q And did you take this -- obtain this data from the
26 Statistics Canada website?
28 Q And I understand that it's possible on the
29 Statistics Canada website to see the results on
30 this point by various age brackets; is that
31 correct?
33 Q And I understand that you have done a breakdown of
34 these age brackets; is that correct?
36 MR. DICKSON: My Lord, I have distributed this
37 breakdown to my friend last night and I would ask
38 to pass it up at this time.
39 Q And there are two sheets here and at the moment
40 I'm speaking of the first sheet. Is this
41 spreadsheet a breakdown of those age brackets we
42 were just speaking of?
44 Q And did you prepare this spreadsheet?
45 A I did last night.
46 Q Where did you obtain the data?
47 A I downloaded it from StatsCan website.
47
1 Q And does this spreadsheet accurately set out the

2 data from the StatsCan website?
3 A I think so, yeah.
4 Q Very well. And if we turn over the sheet there's
5 another -- turn over the page there's another
6 spreadsheet and I understand again on the Stats
7 Canada website that within the category of "never
8 married" it is possible -- Stats Canada breaks
9 "never married" down into in a common law
10 relationship and not in a common law relationship?
12 Q And so those are two subcategories of the broader
13 category of never married; is that correct?
15 Q And so I understand it's possible to determine how
16 many men and women are never married and not in a
17 common law relationship; is that correct?
18 A That's right.
19 Q And is this spreadsheet your breakdown of those
20 results by age bracket?
21 A That's correct. But these are already a number of
22 people who are currently not in common law
23 relationships.
24 Q Yes.
25 A They could ever be in there, but not currently in
26 the relationship.
27 Q And again where did you obtain this data?
28 A Again from the same source. StatsCan website.
29 Q Does this spreadsheet accurately set out that
30 data?
31 A I think so.
32 Q And if we turn to the bottom you have on the right
33 column -- maybe I'll ask the question this way.
34 What does the right column indicate on this
35 spreadsheet?
36 A Well, there's a difference between the number of
37 men and number of women, age-specific numbers, the
38 difference. So the number of men married sort of
39 minus the number of women.
40 Q If it's a positive number is it a surplus of men?
42 Q That's what that indicates. And you indicate
43 there there's a -- 550,000 more men than women?
44 A That's right, yeah.
45 Q In 2006?
46 A That's right.
47 MR. DICKSON: My Lord, I would ask that these
48
1 spreadsheets together be marked as an exhibit.

2 THE COURT: Thank you. Exhibit?
3 THE CLERK: That will be Exhibit 110, My Lord.
4
5 EXHIBIT 110: 2 pages; p/c; first page said to be
6 a spreadsheet; titled "Never Married Population by
7 Age: Canadian Census, 2006 (100%) Data
8
9 MR. DICKSON:
10 Q At the bottom of the same page in your affidavit
11 is the next question, which is how many men and
12 women in Canada have been divorced. What answer
13 did you find?
14 A Well, again using the census data, 2006 census
15 data, I find that there were 905,000 roughly
16 divorced men and 1.1 -- 1.2 close to a million
17 divorced women aged 15 and older living in Canada
18 in 2006 at census time.
19 Q And paragraph 21 you were asked how many divorces
20 occur annually in British Columbia. What was your
21 answer?
22 A The most recent data I have is 2005 roughly about
23 10,000, just under 10,000 in 2005. If you look at
24 the numbers from 2001 to 2005 it hasn't changed
25 that much in terms of number of divorces in
26 British Columbia.
27 Q And then over the page on page 7 is the question
28 what percentage of marriages end in divorce in
29 Canada and I believe you also address the question
30 of what the divorce rate is in British Columbia as
31 well, and what were your answers?
32 A That's correct. Using the general social survey
33 data I find that just about one third of marriages
34 are expected to end in divorce within 30 years of
35 their marriage in Canada. The number in BC is
36 slightly higher, around 40 percent of the
37 marriages are likely to end in divorce or
38 separation divorce by their 30th anniversary.
39 Q And turning to page 12 you were asked how many
40 children do Canadian adult men and women have on
41 average. What did you find for that question?
42 A Well, using the -- again using the year 2006
43 general social survey I find on average -- can you
44 refer me to the paragraph because I have different
45 page -- page 13?
46 Q Yes, it starts on page 12 down at the bottom just
47 above paragraph 33.
49
1 A Okay, I found it. So on average I find for women

2 the number is 1.59. We call it total fertility
3 rate. This is actually the cohort total fertility
4 rate. In other words, on average a woman is
5 expected to have 1.59 children on average in her
6 lifetime. And for men this number is 1.35.
7 Q And there's a difference between the two numbers
8 and that seems odd. It takes a man and a woman, I
9 understand, to make a child, and why do you think
10 the difference exists?
11 A Well, I suspect that part of the difference is due
12 to that men either don't remember they fathered a
13 child or they don't know they fathered a child.
14 I'm just speculating. I suspect that part of the
15 reason is that the men are -- underreporting is
16 very common in other surveys.
17 Q These are self reported?
18 A These are self reported number of children, yeah.
19 Q Very well. And at paragraph 39 just above it
20 you're asked how many adult men live with
21 step-children.
22 A Well, this again using the 2006 general social
23 survey I find that roughly about 5.8 percent of
24 the Canadian men aged 15 and over are living with
25 at least one step-child. This is amounts to about
26 730,000 men aged 15 and over. And for women this
27 number was about 4.6 percent aged 15 and over.
28 This roughly amounts to 600,000 women in that age
29 group.
30 Q And did you address the question as well of how
31 many men and women have ever lived with a
32 step-child or step-children?
33 A Yes. I have done some analysis. I find that
34 about 8 percent of Canadian men, again this is age
35 15 and over, have ever raised or lived --
36 raised -- I think also lived with a step-child or
37 step-children. In comparison only 4 percent of
38 Canadian women in the same age group have ever
39 raised a step-child.
40 Q And in absolute numbers what would that translate
41 into?
42 A This would be about just over a million Canadian
43 men and just over half Canadian women.
44 Q Sorry, half a million?
45 A A half million. It's more. 536,000.
46 Q Thank you. The last question you were asked to
47 address in your report relates to how women's
50
1 employment outside of the home has changed in the

2 last century, and what is a brief summary of your
3 findings to that question?
4 A Well, there has been -- over the last 100 years
5 there's been a dramatic increase with women's
6 labour force participation, although in the last
7 20 years the trend has been fairly flat, been
8 fairly stable. About 72 percent of the women are
9 now in the labour -- pay the labour forces
10 compared to just about -- I'm trying to look for
11 that chart. Hold on.
12 Q I note that Exhibit H is a list of --
13 A Compared to just about 20 percent in the early
14 century -- early 20th century.
15 Q Yes, and you have two graphs, I believe, on this
16 point. Exhibit G --
17 A Yes.
18 Q -- which is at page 10 of the exhibits and
19 Exhibit H and perhaps you could just explain what
20 those represent, what those tell us, those two
21 charts.
22 A Well, Exhibit G shows the curve where the trend of
23 labour force participation for men and women and
24 the curve above is for men. You can see a gradual
25 decline over time particularly around the turn of
26 the century. 1901 until 1950s and 60s. And then
27 sort of everything levelled out. For women, which
28 is the curve below that, a dramatic increase from
29 1901 and to 1981, and from 1990s up until now the
30 line has -- the percent has changed relatively
31 little in the last I would say 20 years or so.
32 So the other chart which is marked as
33 Exhibit H shows the pay equity between men and
34 women in the same timeframe -- same timeframe from
35 1900 until 2008, I believe. And the line -- or
36 the blue line above on the top is for full-time
37 and full-year earners and the lower line is for
38 all earners. We can see that the upward trend is
39 clear, unmistakable particularly if you look at
40 the full-time -- full-time, full-year earners.
41 Now they're making about -- just a little bit over
42 70 percent for what men makes now, in terms of for
43 every dollar a man makes they make about 71 cents
44 for women
45 Q This may be obvious but the increase in the pay
46 equity there is represented by the upward trend --
47 A That's right.
51
Cross-exam by Mr. Jones
1 Q -- of these lines, it's not the narrowing of the

2 gap between the lines like it was in the previous
3 graph?
4 A That's right. Yeah.
5 MR. DICKSON: Very well, Professor. Those are my
6 questions.
7 THE WITNESS: Thank you.
8 THE COURT: Who will be undertaking cross? Mr. Jones?
9 MR. JONES: Yes, My Lord.
10 THE COURT: Who else will be?
11 MR. JONES: I believe my friends from Canada.
12 MR. CURTIS: I will be, My Lord.
13
14 CROSS-EXAMINATION BY MR. JONES:
15 Q Dr. Wu, just before I get into the questions I
16 prepared, just on what my friend said last with
17 respect to this table on page 11, figure 3.
18 A Page 11. Okay.
19 Q He indicated, and this was contrary to my first
20 looking at this so perhaps you could clarify, the
21 gender equity isn't represented by the narrowing
22 between these two lines or it is?
23 A Well, these represented two groups of earners, not
24 a line for men and a line for women. These are
25 all -- these are actually -- one line is the ratio
26 of men's earning -- women's earning versus men's
27 earning.
28 Q I see. Thank you for clarifying.
29 A It's not.
30 Q That was my confusion.
31 A It's --
32 Q You will learn in the next half an hour or so that
33 I am not a numbers guy.
34 Let me arrange myself here. Dr. Wu, I may be
35 referring in the course of my cross-examination to
36 a couple of articles that I believe you wrote, so
37 I'm just going to hand them to you and the Court.
38 I have already given a copy to my friends. And I
39 would just like you to identify them for me at
40 this point and then we might be referring to them.
41 Could you give that to the witness. Thank you.
42 And the first one, Dr. Wu is, called "Recent
43 Trends in Marriage Patterns in Canada"?
44 A That's right.
45 Q And this is "Policy Options" from September 1998?
46 A M'mm-hmm.
47 Q And do you recognize this as the article that you
52
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.
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.
44
45 EXHIBIT 112: 18 pages; p/c; titled "Shacked up:
46 A Demographic Profile of Non-Marital Cohabitation"
47
53
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
1 fourth line down. It says this:

2
3 Again those who are inclined toward polygamy
4 are likely to practice it regardless of its
5 legality and lifting the ban is unlikely to
6 lead to any significant increase in its
7 incidence.
8
9 Now, do you have any knowledge or anything that
10 you can assist the court with with respect to the
11 incidence of polygamy in Canada?
12 A There's no Canadian national data on polygamy.
13 Period. I did try to find any but there's none.
14 Q Okay.
15 A So I can't comment on that.
16 Q So there's nothing you can add to its present
17 incidence and I take it then that there would be
18 nothing you could add that would suggest the
19 likelihood of its increase?
20 A No, I wouldn't say I know.
21 Q Okay. I'll carry on with this passage. It says:
22
23 The pool of unmarried men that the AGBC warns
24 polygamy would create has no basis in
25 reality. Within the Canadian population
26 polygamy is statistically almost
27 non-existent.
28
29 Now, that's not your evidence is it, sir?
30 A No.
31 Q You're not saying it's statistically almost
32 non-existent, are you?
33 A No, I wouldn't say so.
34 Q Okay. And then carrying on:
35
36 The pool of unmarried men that already exists
37 in Canada is many times greater than the
38 populations of all polygamous communities in
39 Canada combined.
40
41 And again you don't know what the populations of
42 all the polygamous communities in Canada combined
43 are?
44 A Not to my knowledge. I don't --
45 Q You can't help us there either?
46 A Yeah.
47 Q So then it says:
55
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
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?
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
1 declining or has declined in recent years and

2 that's largely due to an increase in alternative
3 conjugal arrangements; is that right? Common law
4 marriage?
5 A Partly, but either you're take -- I wrote another
6 article -- I can't remember whether it was
7 published. I try to sort of combining marriage
8 and cohabitation together to look at first
9 uniformation rate. Overall the rate has declined
10 little -- I can't say little but has been
11 declining. In other words, even if you take into
12 account cohabitation the overall uniformation rate
13 has been declining.
14 Q And what, sir, if you take into account what you
15 refer to as LAT, the living apart together
16 relationships, which are as I understand it, this
17 is committed relationships that don't involve
18 cohabitation. So for instance if someone lived on
19 Bowen Island but worked a heck of a lot in
20 Victoria then they might not get home to visit
21 their family as much as they like and they might
22 maintain a second residence or something like
23 that; is that right? Or it could be boyfriend/
24 girlfriend. What does LAT mean?
25 A Well, LAT actually is a term coined by Europeans.
26 I personally don't think that we have -- as
27 Canadians that we have a pretty -- we don't have
28 good data on it.
29 Q Okay.
30 A We just -- StatsCan has a report -- try to
31 estimate the rate of LAT. This is living apart
32 together, LAT. Which means that you have
33 committed romantic relationship but both parties
34 keep their separate residence. So then it comes
35 down to how many nights you spend together would
36 be considered as LAT. The line is not clear. Is
37 it one day a week or up to three days?
38 Q Difficult to define?
39 A Difficult to define.
40 Q Would it be reasonable to say that those LAT
41 relationships -- when you say committed does that
42 mean exclusive?
43 A Actually in theory it should be.
44 Q Okay.
45 A But I don't think that's the question we asked.
46 Q Well, in theory marriage should be exclusive too,
47 sir?
58
1 A That's right. Yeah. But yeah, I think the

2 question do you have -- I can't -- you can't quote
3 me on that. I have to look at GSS questionnaire.
4 I think it's somewhere around do you have --
5 you're not married, you're not cohabiting, and
6 then prompt the question do you have someone a
7 romantic relationship, the answer is yes. I think
8 those people are considered as LAT. But in Europe
9 they certainly use a more restricted term for LAT.
10 It would have to be a committed relationship and
11 so on.
12 Q Okay. Now, perhaps I can take you to Exhibit 110
13 which is the two charts that you prepared last
14 night and that were forwarded on to us last night
15 by my friend.
16 A M'mm-hmm.
17 Q Just looking at the first one, this is never
18 married population by age, Canadian census 2006.
19 So this is a snapshot of people in these age
20 ranges and you asked them have you ever been
21 married and if they say no or if they rate
22 themselves as never married then this is what we
23 get?
24 A That's correct, yeah.
25 Q So this is, if I can put it this way, given that
26 the trends of marriage change over time if we were
27 to look at, for instance, the 65 to 69-year-olds
28 we would see roughly 40,000 men who were never
29 married?
30 A M'mm-hmm.
31 Q A much lower number than the million 20 to
32 24-year-olds?
34 Q And that figure, that difference, can be
35 explained, can't it, sir, in basically one of two
36 ways. Either that these 20 to 24-year-olds will
37 get married, at least all but roughly 45,000 of
38 them, by the time they are 65, or that some other
39 trend in deciding whether to get married or not is
40 going to affect that. That's a difficult
41 question.
42 A The first part -- I understand your first part of
43 the question certainly. If they follow the
44 current schedule of marriage.
45 Q Right.
46 A Exactly as those people, so by age 65 their number
47 should be reduced to that number.
59
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
1 A I suspect that the lines will be lower and may not

2 be reached to 90 percent. Maybe 85 percent.
3 Q And much of the balance of that is being replaced
4 by common law conjugality?
5 A Primarily, yeah.
6 Q And so if we were to consider marriage not as
7 being defined as legal marriage or not legal
8 marriage, but rather as conjugality or committed
9 dyadic relationships which would then include also
10 LAT relationships, is it fair to say that that's
11 been pretty consistent over time?
12 A Certainly I haven't done analysis to include LAT
13 and cohabiting couples and marriage altogether
14 over time to look at trends, but based on my
15 observation and other related analysis my sense is
16 that it has declined not as much as you would
17 expect because the Canadians still want to be with
18 somebody. It's not that we want to abandon a
19 conjugal relationship. It's just people are
20 moving a bit away from marriage, legal marriage,
21 and turn to different type of relationships,
22 conjugal relationship, including common law unions
23 and LAT type of relationships.
24 Q But --
25 A All being considered I think -- or maybe other
26 lifestyle choices. I think the -- overall I don't
27 think that the decline is substantial but I expect
28 it would be some decline in overall conjugal
29 relationship formation?
30 Q Even when LAT is included?
31 A Even when everything is involved.
32 Q When you say some decline from somewhere over 90
33 for marriage alone, which is what it was in 1990,
34 to perhaps around 90 or a little more than 90 when
35 these other factors are considered in, these
36 replacement factors?
37 A Yeah. I'm speculating.
38 Q I understand.
39 A It's somewhere -- I would say somewhere between
40 80 percent and 90 percent.
41 Q And in the other article, sir, I won't take you to
42 it, but you discuss the evolution of -- or the
43 introduction of legal marriage and trace it I
44 think to 1753 -- to English law of 1753, and you
45 suggest I think before that conjugality was
46 marriage. That the marriage that we have all the
47 statistics for is kind of a historical anomaly in
61
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
1 A More marriageable in the market and more likely to

2 get married.
3 Q Thank you. And so to the extent that men don't
4 get married they're more likely to be of lower
5 social economic status?
6 A Generally, yeah. The implication is that.
7 Q Yes. Perhaps, sir, just on my previous point I
8 can take you to your first affidavit at page 19,
9 table 5, I believe it is. This is what I was
10 getting at I think earlier when we were talking
11 about people who within their lifetime would enter
12 into one of these relationships. And it seems to
13 me that 83 percent of men and 87 percent of women
14 will at some point enter into either marriage or
15 common law relationships according to that
16 analysis. Is that --
17 A That's right.
18 Q Okay. So that indicates compared to the previous
19 thing in 1990 this is the small decline maybe that
20 we were talking about, and this still doesn't
21 factor in of course LAT, committed but
22 non-conjugal?
23 A This is not including LAT.
24 Q Do you have any idea how big LAT is?
25 A I don't have the data with me but in the StatsCan
26 sheet I think a couple of articles on LAT.
27 Q Is there any information on LAT over a lifetime so
28 you can say, I mean, we can say that 87 percent of
29 people are going to get married over their
30 lifetime. Can we say how many of the remainder
31 who don't get married, who don't live common law
32 will nevertheless be in LAT relationships?
33 A I wouldn't say all of them will be having LAT, no,
34 but I wouldn't comment on that because I don't
35 know.
36 Q Fair enough. Fair enough.
37 A The other thing is that I mentioned our definition
38 of LAT is very loose as compared to international
39 standard.
40 Q Of course. I understand. Between the 83 or
41 87 percent and 100 we've got gradation?
42 A Yeah.
43 Q Right? And it may well be that the overwhelming
44 majority of that gradation is people who are
45 seeking or have been through their life seeking to
46 be in committed relationships but it's just never
47 worked out?
63
1 A M'mm-hmm, yeah, that's fair.

2 Q Now, I want to put to you, sir, the theory that
3 Professor Henrich talks about and see if you can
4 help His Lordship and provide any insight that you
5 might have either to the propositions that
6 Professor Henrich discusses or the evidence that
7 might be available or useful for it.
8 The question of age of marriage. Now, you
9 speak a little bit of this in your affidavits.
10 You note that I think that it's been narrowing in
11 recent years from 4 years difference between men
12 and women to 2. something?
13 A Well, if you look at the -- this chart you just
14 presented.
15 Q Yes.
16 A Right? So this there is an age gap.
17 Q Right. That's on page 4?
18 A That's right. So it is roughly 3.5 years, 28 and
19 24.5 you would say.
20 Q Right. And we're looking at this over time. It's
21 useful so perhaps we'll linger on that for a
22 minute. We're looking at this over time, so it's
23 apparent that at no time in the 20th century has
24 the age of marriage fallen below 22 for women?
26 Q On the average. And it's fair to say, isn't it,
27 sir, that even if you go back historically as far
28 as the middle ages that's not a bad average. That
29 average holds that far back, doesn't it?
30 A Well, there was no marriage at the time I guess.
31 Q Good point. Okay.
32 A Probably didn't keep a record when people moved
33 in. I don't know what's the form of family
34 formation bonding you were talking about.
35 Q So it's your evidence that we would have no
36 statistics on it prior to the 1700s when marriage
37 records began to be counted?
38 A Yeah.
39 Q Are you aware of any period in time where either
40 marriage records or an anthropological analysis
41 has indicated that the average age of marriage was
42 less than 20?
43 A I can't think about it in my head right now but I
44 believe Quebec demographers did quite a bit of
45 historical demography and they have kept fairly
46 good records through the church and have fairly
47 good data on -- demographic data, historical
64
1 demographic data on child bearing and so on. That

2 could date back to 18 century or even earlier than
3 that.
4 Q Do you remember what it said?
5 A No, I don't remember. That's what I said. I can
6 find it.
7 Q I see. Okay. But I guess just for today you're
8 not aware of any historical trend of the age of
9 marriage for women going below 20?
10 A Not Canadian data, yeah. Not to my knowledge.
11 Q Now, I'm going to put Professor Henrich's -- a
12 couple of his principal propositions to you.
13 He says that in a market with roughly equal
14 men and women that the presence of polygyny, which
15 allows some of the men to have more than one wife,
16 creates a shortage of women for marriage and that
17 this will force a depression or will create a
18 pressure for the recruitment of increasingly
19 younger women to increase the pool of available
20 brides. Do you accept that as a proposition? Do
21 you have any thoughts on that?
22 A Well, in theory, because men tend to marry women
23 of their own age or younger, and if a man marries
24 more than one person, one woman, in theory you're
25 going to look for women of your own age and going
26 younger. If you can't find any women of your own
27 age or slightly younger you're going to go further
28 younger. Yes, I would say in theory it would be
29 possible.
30 Q But it would be true also, sir, wouldn't it, of
31 people in their first marriage because the
32 available pool is smaller because the polygynists
33 are taking some wives out of circulation as it
34 were. So if you take a proportion of the, say,
35 why don't we say 18 to 40-year-olds at the time,
36 child bearing or marriage age. If those are taken
37 disproportionately by a smaller number of men then
38 a pressure is created for the recruitment of a
39 larger pool of women and that can only come from
40 younger and younger ages, and that would be true
41 for monogamous men in the society and polygamous
42 men in society. Would you agree with that?
43 A In theory, yeah.
44 Q And if you wanted to test that theory as a
45 sociologist it would be valuable to conduct a
46 cross-cultural study where you could correlate
47 degree of polygyny with age of first marriage,
65
1 assuming you could control for the appropriate

2 confounding factors?
3 A Many, many other factors. All the other factors.
4 Q Yes. GDP, location?
5 A Everything. Yeah.
6 Q Okay. Is there anything else you can think of
7 that might confound in that analysis?
8 A Well, you mentioned the characteristics as GDP and
9 infant mortality rate and education level and so
10 on.
11 Q Okay. Although it's likely that -- well, no,
12 let's pass that. Let's pass that aside.
13 The other flip side of this mathematical
14 argument, if I can put it this way, to theory as
15 you've referred to it, is that there is a creation
16 or an increase in the pool of unmarried,
17 unmarriageable young men that I think you've
18 already told us are more likely to be lower
19 socioeconomic status. So polygyny creates
20 unmarriageable men to the extent that they can't
21 satisfy themselves from younger brides or some
22 other source of brides; is that fair?
23 A Well, in theory, as I said, in probably a closed
24 society, as demographers I'm thinking there are
25 other issues involved, immigration, migration as
26 well, and people going in and out of the system.
27 Q Right.
28 A But in a closed system in theory, yeah, you would
29 expect the number would increase in terms of men,
30 yeah.
31 Q Okay. And you've mentioned perhaps a third
32 pressure that I can put in there. So we've got
33 the pressure creating this pool of unmarried men,
34 we've got a pressure creating child brides, and
35 then there's perhaps a third pressure for the
36 importation into whatever society it is of women?
37 A There's possible, yes.
38 Q Right. Now --
39 A But can I qualify this?
40 Q Please.
41 A Yes. There's no easy yes-and-no answers for these
42 kind of things; right?
43 Q I understand.
44 A Everything is going to be equal and holding this
45 constant and that constant and so on. Certainly
46 we are talking about in theory and there would be
47 increase but how much the increase is always very
66
1 important. Maybe 1 percent, 2 percent, but it is

2 increase. In theory you would expect an increase.
3 Just based on logic and mathematics it would be an
4 increase. But how much is increase, how much --
5 you know, has to be taken into account as well.
6 Q And the main factor would be, wouldn't it, sir,
7 the degree of the polygyny? If there's two -- men
8 in Canada --
9 A That's right. Absolutely. If everyone marries
10 more than, you know, one person so there would be
11 a shortage of the other sex.
12 Q Yes. So it's ipso facto a pressure, but whether
13 it's -- whether it's significant is going to
14 depend largely on the extent to which the practice
15 is taken up?
16 A That's correct, yeah.
17 Q Now, as a demographer, sir, are you aware of
18 research with respect to rates of criminality
19 among young unmarried men compared to other
20 populations?
21 A Well, that's not a demographer's --
22 Q It's not?
23 A -- thing. It's more a criminologist. I don't
24 know.
25 Q You don't know if young men are more likely to
26 commit crimes than young women?
27 A Well, I know just by -- not an expert on it but by
28 just simple logic, yes, unmarried men are more
29 likely to commit crimes.
30 Q You are to an extent, and I appreciate this is
31 going to be the criminological aspect of marriage,
32 but you are a marriage expert, do you know if
33 there's research out there indicating marriage
34 itself is prophylactic against crime?
35 A I know that married people tend to commit less
36 crime than unmarried people, so that's something I
37 do know.
38 Q So, and again we're talking in theory, but you
39 would accept that in theory the creation or the
40 increase in the pool of unmarried young men could
41 be expected to lead to an increase in crime
42 because of their marital status or lack thereof?
43 A In theory, yes.
44 Q Are you aware of the sociological work done with
45 respect to crime and anti-social behaviour in the
46 wake of the one child policy?
47 A I do, I'm aware quite a bit, actually.
67
1 Q Oh, good. So let me summarize my understanding of

2 it and you can tell me whether it's right. That
3 as a result of the one child policy there has been
4 created a gender imbalance between young men and
5 women in China?
6 A That's correct.
7 Q And that this has created, can we say, massive
8 social problems in China?
9 A The study statistics I don't know, but it
10 potentially has been an issue and a big problem.
11 Lots of people have been spending quite a bit of
12 time studying it.
13 Q Right.
14 A Yeah, it is becoming an issue.
15 Q And is it fair to say, sir, that because the one
16 child policy came into effect in different
17 provinces at different times that it is possible
18 for sociologists to say that these increases in
19 crime are caused by the gender imbalance as
20 opposed to simply being correlated in time with
21 it? Are you familiar with those studies?
22 A No. No. But it's really hard to study given that
23 it's a fairly transient population, migrant
24 population moving in and out of the provinces and
25 it's hard to control.
26 Q Indeed if that's the case?
27 A It would be. It's hard to study that.
28 Q Yes, yes.
29 THE COURT: How much more do you have?
30 MR. JONES: I'm sorry, My Lord. Perhaps if we take a
31 break I would be just a few more minutes.
32 THE COURT: How is Canada doing?
33 MR. REIMER: I will certainly endeavour I would say
34 about half an hour.
35 THE COURT: I beg your pardon.
36 MR. REIMER: I will be half an hour.
37 THE COURT: We'll take 15.
38 THE REGISTRAR: Order in court. Court is adjourned for
39 afternoon recess.
40
41 (WITNESS STOOD DOWN)
42 (AFTERNOON RECESS)
43
45
46
47 ZHENG WU, a witness for
68
1 the Amicus, recalled.

2
3 THE COURT: Mr. Jones.
4
5 CROSS-EXAMINATION BY MR. JONES: (Continued)
6 Q Dr. Wu, just a couple more questions. You do
7 mention in your second report something to do with
8 the under-reporting of spousal violence. Do you
9 know and if you do know is it fair to say that
10 intrafamily crimes generally are under-reported?
11 A Yeah. I would think so.
12 Q And would it also be fair to say crimes against
13 children tend to be under-reported?
14 A Oh, yeah. Domestic crimes tend to be
15 under-reported.
16 Q And that would include sexual exploitation of
17 children?
18 A I would think so, yeah.
19 Q And I want to turn now to your review of
20 Dr. Henrich's report and I want to give you a
21 complete opportunity to comment on them if you
22 feel able.
23 Dr. Henrich's first affidavit contains a
24 literature review with respect to the harms
25 associated with polygamy. Do you remember that?
26 A Yes.
27 Q Did you find any fault in that literature review?
28 Did it cause you any concern as a sociologist?
29 A To be honest I don't feel that I have the
30 expertise to make a judgment.
31 Q I see.
32 A Largely because I'm -- I don't do research in the
33 area. I don't know the literature well, so I
34 wouldn't comment on whether this is a decent, very
35 good review or not good review because I don't
36 know the key players and the key articles, key
37 studies in the area. But just based on the report
38 itself it is extensive and interesting report.
39 Q Thank you, sir. And you would have to in your
40 view have that knowledge of the field in order to
41 comment. Knowledge of --
42 A Absolutely. That peer-review process, you seek
43 experts in the area to make solid judgments.
44 Q I understand.
45 A So for an outsider it's really hard to make any
46 good judgment.
47 Q So would the same answer, and perhaps if I were to
69
Cross-exam by Mr. Reimer
1 ask you if you could find any fault in the other

2 parts of Dr. Henrich's report, in his methodology
3 or reasoning, is there anything there? I think
4 you said that it was comprehensive and interesting
5 but --
6 A It is interesting, yeah.
7 Q Could you find any fault otherwise in
8 Dr. Henrich's methodology or reasoning? Was there
9 anything when you read it that caused you any
10 concern?
11 A Not immediately. I read it quickly, I have to be
12 honest, and I didn't read it word by word very
13 closely.
14 Q Yes.
15 A Fairly dense report. Lots of information in
16 there. It takes quite a bit of time to absorb it.
17 Q Yes.
18 A I wouldn't feel comfortable to comment on it. If
19 I read it again I may have a better opinion.
20 Q I understand. I just wanted to make sure you had
21 that opportunity, sir.
22 A If you want a short answer probably, no, I haven't
23 found any major logical faults in there.
24 MR. JONES: Okay. Those are my questions. Thank you
25 very much for your time and making the trip, sir.
27
28 CROSS-EXAMINATION BY MR. REIMER:
29 Q My Lord.
30 Professor Wu, my name is Keith Reimer. I'm
31 counsel with the Attorney General of Canada in
32 this matter and I have a number of questions I
33 want to ask you. I just want to confirm you have
34 your affidavits in front of you, Exhibit 61 and
35 72, I believe?
36 A I have one, two.
37 Q These are the two reports you've prepared, the two
38 affidavits you filed in this matter; right?
39 A That's right, yeah, yeah.
40 Q Referring first to your initial affidavit and in
41 particular to the report that you've attached to
42 that titled "Changing of Patterns of Conjugal Life
43 in Canada." Exhibit B to that affidavit?
44 A M'mm-hmm.
45 Q In this report you've used a number of different
46 terms to describe what I would think as
47 interpersonal or family relationships; is that a
70
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
1 Q Okay. So you would have, it would be fair to say,

2 no reason to disagree if I told you that it
3 actually had a specific legal meaning?
4 A Okay. Well, if it has a legal meaning which I
5 don't know.
6 Q Okay. But in your report you were not trying to
7 use it in a legal sense? You were not thinking of
8 it in a legal definition of common law marriage?
9 A Absolutely not, that's right.
10 Q And just not to leave you hanging, a common law
11 marriage in law has actually been recognized by
12 the BC Court of Appeal here as a marriage that's
13 actually valid by common law and which when
14 recognized by the courts actually confers legal
15 status upon somebody. So it actually has a
16 specific legal meaning. And would it be fair to
17 say that's actually like you were thinking -- you
18 were -- when you talk about common law marriage is
19 it fair to say you're actually thinking about
20 somebody who is not legally married?
22 Q Okay. So just to avoid confusion of that term,
23 because when I read the report I had some
24 concerns, because when I read the term common law
25 marriage and it actually has a legal meaning and
26 refers to a legally valid marriage, that's not at
27 all what you mean?
28 A No.
29 Q So can we sort of use the term or agree to use the
30 term when talking about common law relationships
31 or common law partners, would that be accurate and
32 fair to you?
33 A That's right.
34 Q As opposed to using common law marriage. Because
35 that's actually what you were trying to get at
36 with the common law marriage you were talking
37 about common law relationships. Non-legally valid
38 relationships?
40 THE COURT: I saw the term cohabitation used much more
41 frequently. Is that not a better term?
42 THE WITNESS: Cohabitation. For my intended purposes
43 in my own research, I use the StatsCan definition
44 for common laws. So I may write it as a
45 cohabitation, I may write it as common law
46 relationship. Depends on where I'm sending the
47 journal to. If I send it to the American journals
72
1 which most of my articles are published and they

2 would review and say what are you talking about,
3 common law relationships.
4 MR. REIMER:
5 Q You would use cohabitation?
6 A I use cohabitation. That's why even the title of
7 the book I called "cohabitation" to reach a bigger
8 audience. In terms of the more operational
9 definition as I do statistical analysis I always
10 use the StatsCan definition, which has some
11 changes over time too.
12 Q The StatsCan definition, and what is the StatsCan
13 terminology, what terminology does Statistics
14 Canada use?
15 A I think in -- at least in most of the -- in the
16 past I was thinking they have changed slightly as
17 well. I'd better check their definition. But in
18 the past they are generally saying are you living
19 with somebody of opposite sex as husband and wife
20 but not legally married.
21 Q And they would define that person as a common law
22 partner?
23 A That would be defined as -- StatsCan would define
24 this person as a common law partner.
25 Q Sorry, I'm not trying to belabour this but I just
26 think it's important when I read the reports and
27 in these discussions to make sure we're all agreed
28 on the language because I think it's very easy for
29 some confusion to slip in here.
30 And I guess particularly on this point which
31 is, and I will come to the question of
32 cohabitation because I think that's an interesting
33 one to clarify that term, but with respect to
34 common law marriage I'm sure you would agree with
35 the potential confusion that when we're talking
36 about marriage and, in fact, in most of your paper
37 you're using "marriage" to mean legal marriage; is
38 that correct?
39 A Correct.
40 Q And so common law marriage is exactly the exact
41 opposite of what you were trying to convey. You
42 were trying to convey the opposite of a legal
43 marriage?
44 A That's right. It has a marriage-like relationship
45 but not legally married. So that's what I intend
46 to use. I suppose only among lawyers we get
47 confused with terms. If I talk to academics no
73
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
1 A So for my intended purposes they mean the same

2 thing. I think in my book I started off by
3 defining what I mean by cohabitation and I use
4 those terms as a synchrony.
5 Q But just to be clear, you would agree though
6 there's a very sharp line between legal marriage
7 and cohabitation. Those are not the same thing.
8 In other words, when you're talking cohabitation
9 you are not trying to include legal marriage in
10 cohabitation?
11 A No.
12 Q And in your paper you actually include -- you talk
13 about cohabitation representing a diverse set of
14 relationships including short-term arrangements.
15 What do you mean when you're talking about
16 short-term arrangements? Sorry, I can refer you
17 to the specific portion. If you go to page 12 in
18 your report.
19 A In my report.
20 MR. DICKSON: Affidavit number 1?
21 MR. REIMER: Affidavit number 1. Exhibit B. This is
22 the report.
23 Q And in the last paragraph on page 12 you talk
24 about, about halfway through that paragraph:
25
26 While marriage has a specific legal
27 definition cohabitation represents a diverse
28 set of relations including short-term
29 arrangements, long-term trial marriages and
30 permanent variants of marriage.
31
32 So when you talk about short-term arrangements
33 what are you including in cohabitation then?
34 A Well, I understand certainly the period requires
35 as a prerequisite to be qualified as a
36 cohabitation or a common law union varies between
37 provinces; is that right? And the other thing
38 it's important to point out is that generally I
39 analyse data, this data are self-reported. So
40 they're asking are you in a common law
41 relationship and respondent may check "yes," even
42 if they live together a month instead of one year
43 or two years and so on. So these are generally
44 self-identified relationships.
45 So they're not married, and there's marriages
46 and non-marriages so these are including a diverse
47 set of -- diverse set of relationships.
75
1 I'm not sure whether I answered your question

2 actually. Are you trying to get short-term means
3 how long is required to call it a short-term?
4 Q Well, I was just -- I mean, you had defined
5 cohabitation as including short-term arrangements
6 but I took it from your answer that they would
7 have to meet the statutory requirements to
8 qualify?
9 A I don't think so. That's what I'm saying it
10 probably doesn't meet the requirement, but these
11 data is self-identified, self-reports. If you ask
12 them are they in a common law relationship or are
13 you living together with somebody as husband and
14 wife they could have moved in for two months or a
15 month and they split a month later. So altogether
16 probably lived together for only two months and
17 they would have considered this as a common law
18 relationship cohabitation. So that's what I'm
19 referring to.
20 Q So if we step back again then, in keeping the
21 terms clear, you would agree then that in your
22 report you are making a distinction between legal
23 marriage and what is called everything else, what
24 you sort of described as cohabitation?
25 A Correct.
26 Q And again just to make sure the terminology is
27 clear would you agree it's actually more accurate
28 to refer to unmarried cohabitation?
30 Q Because obviously when you're married you could
31 also be cohabiting?
32 A That's right.
33 Q So cohabitation could include marriages. But in
34 your report you're not trying to include marriages
35 in cohabitation; you're referring to unmarried
36 cohabitation?
37 A That's right. It's fairly consistent with the
38 literature. If you talk about cohabitation it
39 always refers to non-marital. But if I talk to
40 someone who's not -- non-demographer I have to say
41 this refers to non-married cohabitation.
42 Q Okay. And thank you for clarifying that because I
43 just want to make sure we're all sort of using the
44 same sort of terminology.
45 Now, in that book I provided copies of,
46 Cohabitation: An Alternative Form of Family
47 Living, you are looking at cohabitation, and is it
76
1 fair to say that in that book you concluded that,

2 and I think your words were that there's no doubt
3 that cohabiting unions, and this is again
4 referring to non-marriage cohabiting unions, are
5 more vulnerable and less stable than marital
6 unions?
7 A That's correct.
8 Q And if I construe that in your book you set out
9 that half of all cohabiting and again non-marital
10 unions -- sorry, less than half are expected to
11 last three years; is that fair?
12 A More or less, yeah. But I need to qualify that.
13 I say about half last only three years and
14 majority actually turn into marriages. So the
15 cohabitation is dissolved, it's dissolved through
16 marriage. If you're talking about strength of
17 relationship it's actually becoming stronger
18 because they got married. The other less than
19 half separate. Dissolved the relationship.
20 Q And in that book, in introduction to that book at
21 page 3, which you should have. So page 3 in
22 introduction about halfway down in that first
23 paragraph you talk about "in accordance with the
24 definition." You see that about ten lines down?
25 A M'mm-hmm.
26 Q
27 Cohabitation does not imply a long-term
28 relationship and commitment for many people,
29 therefore it's reasonable to expect that
30 people who choose to cohabit are less likely
31 to make a long-term commitment to their
32 partner or the institution of marriage than
33 those who choose not to cohabit.
34
35 So is it fair to say that when you're
36 comparing legal marriage and marriage and
37 unmarried cohabitation would you agree that
38 generally speaking unmarried cohabitations are
39 shorter in duration than marriages?
40 A That's correct. On average. But certainly
41 cohabitation is very diverse. It's a very diverse
42 group of people. Some people are looking for
43 long-term relationships and some people are
44 looking for short-term relationships.
45 Q Okay. And would you also agree generally speaking
46 that unmarried cohabitations are at greater risk
47 of dissolution that marriages?
77
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?
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?
39 Q So that, in fact, is an important aspect of the
40 marriage, is that public contractual commitment to
41 the relationship?
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?
78
1 Q And that distinguishes it from the cohabitation

2 relationship?
3 A That's correct, yeah. That's certainly one of
4 the -- one of the characteristics, I guess.
5 Defining characteristics.
6 Q Because, in fact, the only way a person can
7 acquire marriage status is through the expression
8 of that clear, free personal choice and commitment
9 to that contractual relationship?
11 Q Now, in your report and in your book you talk
12 about an increase in unmarried cohabitation. Is
13 it fair to say that the data you're looking at,
14 that's a relatively recent development, that
15 growth in cohabitation?
16 A Well, those are based on the, I believe, up to
17 1996 census, I believe.
18 Q Yeah?
19 A Because it was 2000. This is ten years from now.
20 Q Okay. But is it fair to say that that increase in
21 cohabitation you're talking about would have
22 occurred since the 1970s, 1980s?
23 A Last few decades.
24 Q Last few decades?
25 A Absolutely.
26 Q Now, one of the other terms that you use
27 throughout or frequently in your report, you talk
28 about a conjugal union. Again, do you have a
29 precise legal meaning in mind when you talk about
30 a conjugal union?
31 A I wouldn't say I do.
32 Q Do you know whether or not the term "conjugal
33 union" has a precise meaning?
34 A No.
35 Q And I take it from that you wouldn't be able to
36 say what that meaning might have been in the 1890s
37 or early 1900s?
38 A No, my sense of that word is certainly more
39 inclusive in terms of relationship. Couple
40 relationships or family relationships more
41 involves a partner. More inclusive.
42 Q And when you're talking about a conjugal union
43 would it be fair to say that what you have in your
44 mind is essentially a conjugal relationship as
45 might have been defined by the Supreme Court of
46 Canada in some recent stuff, that notion of
47 conjugal relationship? Would that be a fair
79
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?
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?
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
1 these would be households centred on a couple that

2 have chosen not to get legally married?
3 A That's correct.
4 Q So you say below that, about three lines down in
5 the text of your report:
6
7 Of course, legal marriage remains the core
8 institution that establishes and structures
9 Canadian families.
10
11 And that, in fact, is still very true. In fact,
12 80 percent of coupled families legally married
13 couples?
15 Q So there's really -- I mean, whatever trend there
16 might be currently, we're not -- you wouldn't
17 dispute that marriage remains a core institution
18 and a valued social institution in Canada?
19 A Yeah, I would say so, but if you look at only 25
20 years, from '81 to 2006, the pattern has been --
21 the trend has been fairly dramatic. Even compared
22 to 2006 it's 81.6 percent, but if you compare to
23 81 it's almost 94 percent. So a decline in
24 that -- this time period is fairly, fairly
25 dramatic. In the meantime you look at coupled
26 families from 6 percent in 81 up to over
27 18 percent in 2006. This is like three-folds. So
28 relative terms. But in terms of absolute terms
29 you're talking about still dominant, yeah.
30 Q And I guess that was going to be my question.
31 There's no dispute that today legal marriage still
32 remains the core institution for shaping Canadian
33 families?
34 A Absolutely.
35 Q Okay. And would you agree then since marriage is
36 that core institution in establishing and
37 structuring Canadian families that the legal rules
38 that govern who can and cannot get married have or
39 will have a significant effect on the structure of
40 Canadian families and society, that in other words
41 because it's a core institution changes to
42 marriage have a significant effect on Canadian
43 society. Is that a fair statement?
44 A Well, to be honest I haven't really done that much
45 work on family. I would agree with you broadly
46 but I would need some thinking, I guess. Yeah.
47 Okay.
81
Discussion re Scheduling
1 Q So would you also agree then that if it was shown

2 that a particular kind of marital structure,
3 particular kind of marriage structure was harmful,
4 whether to the participants in it or to society as
5 a whole that it would be reasonable for Parliament
6 to try and prevent that type of harmful marital
7 structure?
8 MR. DICKSON: I don't think that's an appropriate
9 question, My Lord.
10 THE COURT: That sounds like something I might have to
11 answer under section 1.
12 MR. REIMER: I have no further questions, My Lord.
13 THE COURT: Thank you. Any redirect?
14 MR. DICKSON: None, My Lord.
15 THE COURT: Or no other cross-examination, excuse me.
16 No redirect?
17 MR. DICKSON: No redirect.
18 THE COURT: Professor Wu, thank you very much for
19 coming. You're excused.
20 THE WITNESS: Thanks.
21
22 (WITNESS EXCUSED)
23
24 MR. JONES: Apparently we're hosting him tonight,
25 My Lord. Just a word on scheduling, My Lord, we
26 had originally had Dr. Kendall in for tomorrow.
27 He's been bumped indefinitely and might not be
28 appearing. We propose to start the video
29 affidavits running in these gaps as they occur.
30 THE COURT: Right.
31 MR. JONES: I believe it's okay with my friends. We've
32 got the equipment set up courtesy of CSD so at
33 10:00 a.m. tomorrow we should be ready. We expect
34 to do four in the course of a little over four
35 hours.
36 THE COURT: Okay. Now, is there cross-examination on
37 those?
38 MR. JONES: The ones that we've selected for initial
39 playing are the ones that which no one has yet
40 indicated that they want to cross-examine. I
41 should bring Your Lordship up to speed on some
42 discussions that are happening. We're trying to
43 come to an arrangement to further shorten the list
44 of the people who have to come here live.
45 MR. DICKSON: My Lord, just before my friend jumps in
46 on that perhaps he could allow counsel to have
47 those discussions before it is raised before the
82
Certification
1 court? Thank you.

2 THE COURT: Sure. Should we mark Cohabitation, the
3 extracts, Mr. Reimer?
4 MR. REIMER: I'm a little bit in Your Lordship's hands
5 on this. I only have that one copy which is an
6 interlibrary loan.
7 THE COURT: And you read in what you wanted in.
8 MR. REIMER: I did.
9 THE COURT: So let's not. And I'm going to give you
10 back your copies so I can reduce my paper, my
11 carbon input. Okay. So you're going to have some
12 discussions and otherwise tomorrow though we watch
13 television for --
14 MR. JONES: The four tomorrow are uncontroversial with
15 respect to discussions.
16 THE COURT: Thank you very much.
17
18 (PROCEEDINGS ADJOURNED AT 4:08 P.M.)
19
20 I, Spencer J. Charest, Official Reporter
21 in the Province of British Columbia, Canada,
22 do hereby certify:
23
24 That the proceedings were taken down by
25 me in shorthand at the time and place herein
26 set forth and thereafter transcribed, and the
27 same is a true and correct and complete
28 transcript of said proceedings to the best of
29 my skill and ability.
30
31 IN WITNESS WHEREOF, I have hereunto
32 subscribed my name this 19th day of January
33 2011.
34
35
36
37 ______________________
38 Spencer J. Charest
39 Official Reporter
40
41
42
43
44
45
46
47

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1

1 but, sir, I do not have any problem with just

1 you currently teach?

1 Q And how long have you been a professor at San

1 economic -- the economics of polygamy?

1 Would you describe it as mainly cultural or mainly

1 accept this as an accurate translation. It's just

1 demand for a given supply.

1 institutions is that when women go through this

1 the harems of the sultans in Istanbul or Granada.

1 de-emphasize romantic love. Yeah, that's also

1 certain institutions that you say are aimed at

1 and that the mortality rates are higher.

1 very well-written and thought-out report that

1 of these eight chapters they devote a whole

1 was obtained under false declarations concerning

1 an opportunity to read the report of Professor

1 MR. DICKSON: My Lord, I'm in your hands. You know,

1 I would like to see more statistics on

1 THE WITNESS: There is actually a whole chapter on the

1 B to your affidavit. I would like to ask you

1 were permitted there would be more polygamy.

1 start of the paper.

1 polygamy and which are essentially bad for women;

1 these institutions and consequences we can

1 A Are you already changing the topic, because I want

1 and precluded from working, such as because of

1 polygamous societies; is that true? I mean, that

1 association between easy divorce and polygamy?

1 Canadian polygamist society of Bountiful does not

1 argument could as easily be made about monogamy;

1 tend to emphasize romantic love and Valentine's

1 society over here there is, as I say, polygamy and

1 MR. DICKSON: My Lord, the next witness is Professor

1 part of the Canadian Federation of Humanities and

1 that's in a text called Canada's Population in

1 to search literature, compile the literature and

1 for Justice Statistics there were about 75,000

1 1.1 million, a little over 1.1 is million, were

1 Q And does this spreadsheet accurately set out the

1 spreadsheets together be marked as an exhibit.

1 A Okay, I found it. So on average I find for women

1 employment outside of the home has changed in the

1 Q -- of these lines, it's not the narrowing of the

1 fourth line down. It says this:

1 declining or has declined in recent years and

1 A That's right. Yeah. But yeah, I think the

1 A I suspect that the lines will be lower and may not

1 A More marriageable in the market and more likely to

1 A M'mm-hmm, yeah, that's fair.

1 demographic data on child bearing and so on. That

1 assuming you could control for the appropriate

1 important. Maybe 1 percent, 2 percent, but it is

1 Q Oh, good. So let me summarize my understanding of

1 the Amicus, recalled.

1 ask you if you could find any fault in the other

1 Q Okay. So you would have, it would be fair to say,

1 which most of my articles are published and they

1 A So for my intended purposes they mean the same

1 I'm not sure whether I answered your question

1 fair to say that in that book you concluded that,

1 Q And that distinguishes it from the cohabitation

1 these would be households centred on a couple that

1 Q So would you also agree then that if it was shown