01-06-2011 proceedings canadian reference case day 16

8/7/2019 01-06-2011 Proceedings Canadian Reference Case Day 16

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1Preliminary matters

1 January 6, 20112 Vancouver, B.C.34 (DAY 16)5 (PROCEEDINGS COMMENCED AT 10:00 A.M.)67 THE CLERK: Order in court. In the Supreme Court of8 British Columbia at Vancouver on this 6th day of9 January, 2011, recalling the matter concerning the10 constitutionality of section 293 of the Criminal11 Code, My Lord.12 THE COURT: Sorry, I was delayed in my office.13 MR. REIMER: My Lord, for the record Keith Reimer

14 appearing for the Attorney General of Canada this15 morning.16 This morning the Attorney General of Canada17 is calling Professor Rebecca Cook to provide18 evidence in this proceeding. Professor Cook is19 already in the witness box. Canada is tendering20 Professor Cook as an expert in international human21 rights law with a particular focus on women's22 rights and states' obligations under international23 human rights law. Perhaps at this time Professor24 Cook could be sworn.2526 REBECCA COOK, a witness

27 called for the AG of28 Canada, sworn.2930 THE CLERK: Please state your full name and spell your31 last name for the record.32 THE WITNESS: Rebecca Johnson Cook. My last name,33 Cook, is spelled C-o-o-k.34 THE COURT: Please have a seat, Professor.35 MR. REIMER: My Lord, an expert report prepared by36 Professor Cook has already been filed in these37 proceedings I believe it was marked as Exhibit 42,38 if the court has that. Just confirm, Professor39 Cook, you have a copy of your report as well?40 THE WITNESS: Yes, I do.41 MR. REIMER: The report filed by Professor Cook42 attaches at the back of it following page 105 a43 copy of Professor Cook's a curriculum vitae. And44 what I propose to do at this time is to take45 Professor Cook through her CV and her46 qualifications to provide expert evidence on this47 matter.



2Rebecca Cook (for AG of Canada)In chief on qualifications by Mr. Reimer

12 EXAMINATION IN CHIEF ON QUALIFICATIONS BY MR. REIMER:3 Q Professor Cook, I understand from your CV that you4 received your doctorate in law from Columbia5 University in New York city in 1994?6 A Yes, I did.7 Q And your doctorate dissertation is in the area of8 international human right law, and more9 particularly on the application of the10 International Convention on the Elimination of all11 Forms of Discrimination Against Women?12 A Yes.13 Q And perhaps just to clarify some language right at

14 the beginning of today's proceedings, I understand15 the International Convention on the Elimination of16 all Forms of Discrimination Against Women, which17 is quite a long moniker, is often referred to as18 CEDAW or even more commonly as the Women's19 Convention; is that correct?20 A Yes.21 Q Before receiving your doctorate you received your22 masters in law from Columbia University in 1988?23 A Yes.24 Q And your masters thesis was again in the area of25 international human rights law and more26 particularly the application of the Women's27 Convention?28 A Yes.29 Q You were called to the bar in Washington D.C. in30 1983?31 A Yes.32 Q And that was after receiving your law degree from33 Georgetown University in 1982?34 A Correct.35 Q And before attending law school you considered a36 masters degree in public administration at Harvard37 University?38 A Yes.39 Q Now, I understand from your CV that you're40 currently a professor of law and the chair of

41 international human rights law in the faculty of42 law in the University of Toronto?43 A Yes.44 Q And how long have you been a professor at the45 University of Toronto?46 A I started at the University of Toronto in 1987.47 Q And at that time, after becoming a professor, you




1 became a director of the human rights program in2 the faculty of law?3 A Yes.4 Q And you've subsequently become the chair of5 international human rights law at Toronto?6 A Yes.7 Q And I understand as the chair in international8 human rights law you are the senior professor in9 international human rights law at the university?10 A That's correct.11 Q Can you briefly tell the court some of the courses12 that you teach in the faculty of law?13 A I teach international women's rights, I teach a

14 course in reproductive and sexual health law.15 Those are the two courses that I taught this year.16 And I've also taught international human rights17 law, the general basic course in international18 human rights law.19 Q And are those courses -- are those graduate level20 courses?21 A Yes, they include graduate students and also JD22 students.23 Q And as an aspect of your course on international24 women's rights do you teach a section on polygamy?25 A Yes, I teach a class on polygamy.26 Q And in addition to teaching those courses are you27 also involved in supervising masters and doctoral28 thesis in the faculty of law?29 A Yes.30 Q And those theses focus generally on international31 human rights law?32 A Yes, and more particularly international women's33 rights.34 Q Now, I see from your CV that in addition to being35 a professor in the faculty of law, you're also a36 professor in the faculty of medicine in the37 University of Toronto?38 A Yes, where I teach medical ethics and health and39 human rights.40 Q And the course in health and human rights, does

41 that include aspects of international human rights42 law as well?43 A Yes.44 Q In your CV on pages 1 and 2 you list several other45 positions that you currently hold, including a46 position as an instructor at the Academy of Human47 Rights at the Washington School of Law at the




1 American University in Washington DC. Can you2 just tell us briefly about that position?3 A Well, the Academy of Human Rights at American4 University is an annual academy that meets in the5 summer and I teach there because it's -- it's just6 a wonderful academy. Students from all over the7 world and -- students and faculty from all over8 the world, and I co-teach a course on9 international women's rights with a lawyer who is10 a lawyer on the Inter-American Commission on Human11 Rights.12 Q And how long have you been teaching at that13 academy?

14 A At least eight years, probably ten. Oh, since15 2005, sorry.16 Q Now, I see from your CV on page 2 that you've also17 taught at other universities other than the18 University of Toronto including the University of19 the Free State in South Africa at the faculty of20 law there, and at Columbia University in the21 school of public health. Can you just talk22 briefly about what you've -- what you've been23 teaching at the University of the Free State in24 South Africa, or the work you've been doing there?25 A Yes. I have been teaching there from time to time26 and I also do research with Africa's leading27 scholar on health and human rights, or more28 particularly HIV and human rights.29 And I have also supervised a doctoral student30 at that university in adolescent health and human31 rights.32 Q Now, starting at the bottom of page 2 in your CV33 you list several editorial advisory boards that34 you're a member of. I'm just wondering if you35 could highlight some of those boards for us.36 A The Human Rights Quarterly is probably the most37 prestigious human rights journal and I have been38 on that editorial advisory board since 1995. I am39 required as a member of the editorial advisory40 board to review papers that have been submitted

41 for publication. I am also required to recommend42 papers that I think are worthy of publication that43 will help advance the field of international human44 rights.45 Q I also notice that among those editorial advisory46 boards there is one, and you're going to have to47 forgive my Spanish on this, La Revista




1 Iberoamericana de Derechos Humanos. Can you tell2 us a little bit about that?3 A Yes, that's based in Mexico. It's one of Mexico's4 human rights journals, and again my obligations5 are to recommend articles both in -- recommend6 papers for publication both in Spanish and in7 English. They come out -- that journal comes out8 both in English and in Spanish.9 Q And would that journal be considered a leading10 journal in Latin America?11 A Yes, I think you could call it a leading journal.12 Q And all of the journals you've listed here, their13 focus generally on international human rights law

14 issues; is that a fair statement?15 A Yes, there's some more specific to health aspects16 of human rights, but yes.17 Q Can you explain what the qualifications are to be18 a member of the board or why you're selected to be19 a member of the editorial advisory boards?20 A Well, I think the first qualification is your own21 scholarship and the degree to which your22 scholarship has contributed to building the field23 of international human rights or health and human24 rights. So that would be the first qualification.25 Also the degree to which you've supervised26 graduate students and how you generally -- what27 your general reputation is to building the field28 to contributing to the knowledge and understanding29 of international human rights.30 Q Now, on page 3 and 4 in your CV you list a number31 of current advisory appointments. Can you talk32 briefly about the nature of those advisory33 appointments.34 A They're -- maybe one can categorize them in terms35 of legal advisory and academic advisory.36 With the legal advisory appointments such as37 the one to the Centre for Reproductive Rights,38 being a member of the international litigation39 advisory board, that requires you to work with40 them on a periodic basis to recommend and work

41 with them on the kinds of litigation that would42 again advance women's interests in the field. And43 that would be with regard to their work in Africa,44 Latin America and Asia.45 So there's a group of legal advisory boards46 that I'm on and then in addition to that there's47 academic advisory boards. The academic advisory




1 boards are required -- require you to really think2 about how you develop the knowledge and3 understanding to grow the foundations of the4 field. International human rights law is a5 relatively new field so there has been a great6 deal of emphasis about generating the knowledge7 necessary of the risk factors, for example, of8 human rights violations.9 So a great deal of work has been done through10 these different academic advisory committees to11 develop the knowledge necessary. And each12 academic advisory committee has its own niche and13 its own purpose, so you select these advisory

14 boards very carefully because you want to make15 sure you can contribute in a significant way16 Q Now, I also notice you've been involved with the17 World Health Organization. What has been your18 role with the World Health Organization?19 A I've been associated with the World Health20 Organization since 1987 for sure, and this is the21 most recent advisory committee I have been on.22 This is a real privilege and a real obligation,23 and again you work with them very, very closely to24 develop the kinds of research that's necessary on25 women's health and human rights to begin to apply26 laws, policies and practices that actually would27 improve women's health. Most of my work with the28 World Health Organization has been addressing29 pregnancy-related death, maternal mortality.30 Q Now, I see on page 4 of your CV that you received31 various honours. In particular I noted that you32 were made a fellow of the Royal Society of Canada33 in 1999. Now, my understanding is that the Royal34 Society of Canada is Canada's national academy,35 the senior national board of distinguished36 Canadian scholars, artists and scientists. Is37 that a fair description? And that that academy38 exists to recognize academic excellence to advise39 governments and organizations and to promote40 Canadian culture.

41 Now, is it also true to say that to be made a42 fellow in the Royal Society of Canada you have to43 be selected by your peers for an outstanding44 contribution in your field?45 A Yes.46 Q And I'm going to suggest it's probably a bit of an47 understatement that being made a fellow in the




1 Royal Society of Canada is a significant honour as2 an academic. Is it, in fact, one of the highest,3 if not the highest, honours an academic can4 receive in Canada?5 A I certainly consider it the highest honour in6 Canada to be appointed to the Royal Society of7 Canada.8 Q Now, are there responsibilities that come with9 being a fellow in the Royal Society of Canada?10 A Yes, there are. I think there are significant11 responsibilities that come with being a member of12 the Royal Society of Canada, and it's to ensure13 that your scholarship continues to contribute in

14 significant ways, in very significant ways, to15 developing the knowledge and understanding, in my16 case, of international women's rights.17 Q Now, in your CV you've listed what I'm going to18 describe as a substantial number of publications.19 By my count as I look through I think there are20 you've listed 17 books which you have authored or21 co-authored, 33 book chapters, 11 legal briefs22 ranging from courts from the US Supreme Court to23 the constitutional court of Colombia, to the24 European court of human rights, Supreme Court of25 Mexico. 111 articles and 26 published conference26 proceedings, 14 book reviews, and then various27 other publications and teaching materials. And I28 see you that have a number of things forthcoming29 as well. You and the Court I'm sure will be30 delighted to know I'm not going ask you to31 summarize all of your publications, but I am going32 ask simply if it would be accurate to say that all33 these publications have focussed on aspects of34 international human rights law including state's35 obligations and responsibilities, women's rights36 and health issues?37 A Yes.38 Q Now, I note that many of your articles and books39 have been translated into other languages, and I40 refer perhaps in particular to on page 5 of your

41 CV, item 8, there's a book that you were editing42 on and I believe also wrote parts of, The Human43 Rights of Women: National and International44 Perspectives, and I see that's been translated45 into Spanish and Chinese and there's a Taiwanese46 edition of several of the articles.47 Am I correct in thinking that works being




1 translated into other languages suggest that those2 works are being seen as foundational or leading3 works in the area?4 A Yes.5 Q And can you tell us a little bit about this book6 that you were editing, The Human Rights of Women:7 National and International Perspectives?8 A Well, for its time -- it was right before the UN9 conference in Beijing, and for its time it brought10 together some of the leading lawyers from around11 the world to write particular chapters for the12 book on human rights of women both at the domestic13 level, the national level and the international

14 level. And it was seen as a book that would be a15 foundation on which the work that the Beijing16 conference could build. Also it could be used as17 a text and also a foundation for further18 scholarship in the field.19 Q Now, in addition to editing that am I correct in20 thinking that you actually wrote a chapter in that21 book as well?22 A Yes, I wrote a chapter on state responsibility23 vis-a-vis women's rights. That has been a24 continuing theme in my scholarship and work.25 Q Now, one of the other publications that you list26 on page 7 of your CV is your report entitled27 "Polygyny and Canada's Obligations Under the28 International Human Rights Law." This was29 published in 2006. Can you just talk briefly30 about how your research in polygamy related to31 your work and research on international human32 rights law and women's rights?33 A My research on polygyny and in particular for that34 report, which I co-authored with Lisa Kelly,35 was -- the purpose of that was really to think36 about the structural discrimination in marriage37 and family life as opposed to other forms of38 discrimination. As you have noted the convention39 on the elimination of all forms of discrimination40 against women, as an academic one of the

41 responsibilities you have to think about42 discrimination in its different forms. So this --43 I accepted to do this report because it enabled me44 to think about another form of discrimination and45 obligations of states to eliminate that particular46 form.47 Q Now, are you aware of any other publications or




1 work in Canada other than your 2006 report and the2 report you prepared for these proceedings that3 have examined the practice of polygyny or polygamy4 from an international human rights law5 perspective?6 A The only other report in Canada or publication in7 Canada that I use in teaching for my course is8 Lisa Kelly's article that she published on9 polygamy and HIV AIDS in the Journal of Juridical10 Science. I use that in my class on polygamy in my11 course on international human rights.12 MR. REIMER: My Lord, I don't have any further13 questions with respect to Professor Cook's

14 qualifications as an expert. Canada is tendering15 Professor Cook as an expert in international human16 rights law, particular focus on women's rights and17 states' obligations under international human18 rights law, and to provide this court with19 evidence relating to the practice of polygyny,20 treatment of polygyny from international human21 rights law perspective including evidence of state22 practices and obligations.23 THE COURT: Any cross or submissions on qualifications?24 MS. HERBST: No, My Lord, we accept Professor Cook's25 qualifications.26 THE COURT: Thank you. Qualified as tendered by27 Canada. Thank you.28 MR. REIMER: Turning then to the report that you've --29 that has been filed in this proceeding that you30 prepared, Professor Cook, just to confirm it was31 Exhibit 42. Professor Cook cites various32 international instruments in her report and I33 expect that she will be referring to some of those34 in your testimony today.35 For ease of reference we have actually36 prepared a binder of some of those instruments for37 the parties and for the Court. I will be asking38 at the end of the day or now if it would be marked39 as an exhibit. I don't know if you have a40 preference on that.

41 THE COURT: Any objections to that?42 MS. HERBST: No, My Lord.43 THE COURT: Hearing none. Exhibit.44 THE CLERK: Exhibit 120, My Lord.45 THE COURT: Thank you.4647 EXHIBIT 120: 1 white 1" binder titled "Testimony



10Rebecca Cook (for AG of Canada)In chief by Mr. Reimer

1 of Professor Rebecca Cook..."; 1 page index; tabs2 1 - 10; p/c.34 EXAMINATION IN CHIEF BY MR. REIMER:5 Q Now, Professor Cook when you prepared the report6 that's before the court you were aware of your7 duty as an expert witness to assist the court and8 not to act as an advocate for any party?9 A Yes, I'm very much aware of my duty to the court10 to assist the court and not to act as an advocate.11 Q And you prepared your report in accordance with12 that duty?13 A Yes.

14 Q And your testimony today will also be given in15 accordance with that duty?16 A Absolutely.17 Q Did you have assistance in preparing the report?18 A Yes, I had the assistance of Lisa Kelly, a former19 student and now a graduate student.20 Q And where is Ms. Kelly currently a grad student?21 A She is currently doing her doctorate in law at22 Harvard University.23 Q And you had the assistance of Ms. Kelly, but am I24 correct in saying you're the person responsible25 for the contents of the report?26 A I am solely responsible for the contents of the27 report.28 Q Turning then to that report and perhaps just to29 provide an overview of the report, in parts 1 and30 2 of your report which are at pages 2 through 631 you provide a short introduction to your report32 and a summary of your conclusions.33 To begin, can you tell the Court what issues34 you were asked to address in your report.35 A Yes, I was asked to address the harms of polygyny36 as viewed through the perspective of international37 human rights law. I was asked to look at state38 practice and case law on polygamy in comparative39 western democracies including but not limited to40 Australia, UK, US and France, for example, and

41 then to look at the treatment of polygamy in42 international human rights law, and finally to43 think -- to look at Canada's obligations with44 respect to polygamy.45 Q Can you briefly explain how you organized your46 report to address those issues.47 A We -- I first addressed the harms of polygyny




1 thinking about harms in two ways. One was -- is2 the inherent wrongs of polygyny and then the3 associated harms. The second area was looking at4 state practice in opinio juris, that is the5 practice of states with regard to polygyny, but6 not just the practice of states but how states7 feel obligated to address polygamy. Then within8 that section we looked at outright prohibitions as9 well as restrictions -- legal restrictions on10 polygyny, and finally the immigration11 restrictions.12 Then the next section dealt with Canada's13 obligations to comply with international law with

14 regard to polygyny, to take all appropriate15 measures in particular areas such as eliminating,16 ensuring women's equality, ensuring equality in17 marriage and family life, ensuring women's rights18 with regard to health and security of their19 person, and finally looking at Canada's20 obligations with respect to children's rights.21 I also looked at some of the arguable22 limitations on women's rights with regard to23 polygyny such as the right to freedom of religion.24 And finally in the last section I look at Canada's25 obligations under domestic law to comply with26 international human rights law.27 Q Before I ask you to talk about the conclusions28 that you made in your report I'm going to ask you29 if you can explain to us when you use the words30 "polygamy" and "polygyny."31 A Yes, on page 3 of the report paragraphs 13 and 1432 I specifically explain that we use the term33 "polygyny." Polygamy is a general term. It's a34 sex-neutral term that applies both to men and to35 women taking multiple spouses. Because36 international human rights law only deals with37 polygamy in a sex-identified way, that is one man38 taking many wives, we use -- I use to be accurate39 the term "polygyny," which is one man taking many40 wives.

41 Q And when you refer to polygyny can you expand a42 little bit on what you're referring to when you're43 talking about polygyny and the nature of the44 unions that you were considering?45 A When we refer to polygyny I specifically refer to46 one man taking several wives. So it's the47 asymmetrical relationship in the marriage that we




1 look at; that is, one man taking many wives.2 Q But you are -- you are looking at them as3 polygynous marriages; is that a fair statement?4 A Yes. Both solemnized and un-solemnized marriages.5 Q And in your report you refer to those as de jure6 and de facto marriages?7 A Yes, legal as well as in fact. Polygynous unions.8 Q Now, starting at paragraph 16 which is on page 59 of your report, you summarize your conclusions.10 Can you briefly set out those conclusions for us11 before -- we'll go to them in more detail, but if12 you can set them out briefly for us at this time.13 A The first major conclusion is that the patriarchal

14 system of family life that enables a man to take15 multiple wives and not vice versa offends women's16 dignity and thus is inherently wrong. So it's the17 actual structuring of the marriage in an unequal18 way that is inherently wrong.19 Then I go on to look at some of the20 associated harms of those inherent wrongs, and21 they can vary across and within legal and social22 contexts, but as a general matter the harms23 include harms to women's health, their physical24 and mental health, the material harms that both25 women and children suffer in these unions, and26 then the harms, the particular harms to children27 of polygynous mothers -- having polygynous28 mothers.29 Q And is it fair to say that these are the inherent30 wrongs and the associated harms that the31 international treaty bodies, the international32 community have recognized?33 A Yes. These -- as they are reflected through34 international human rights law. Then the general35 conclusion with respect to state practice in36 opinio juris is that the dominant practice that is37 now common among states is to prohibit polygyny38 either by criminal or family law provisions.39 One could also say that another general40 conclusion that I make in the report is that

41 recent prosecutions to enforce criminal42 prohibitions of polygyny have not been successful43 despite claims of freedom of religion.44 So that -- those are the highlights of the45 general conclusions with regard to state practice46 and opinio juris.47 Q Turning then to Canada's obligations under




1 international law with respect to polygyny, what2 did you conclude?3 A I concluded that Canada has an obligation to take4 all appropriate measures to eliminate polygyny5 under international human rights law as a form of6 discrimination against women.7 There are collateral obligations as well.8 One is to dismantle prejudices and harmful9 stereotypes as well as ensuring that -- women in10 polygynous unions, ensuring their rights are11 protected.12 Those are the highlights of the conclusions.13 There are more details which we can get into

14 later.15 Q Okay. And perhaps before we get into those16 details I'm hoping you can perhaps provide us with17 international law 101. I think it might be useful18 if you can explain some of the general principles19 of international law so that when we get into some20 of the further discussion we will at least have21 the vocabulary and the terminology to understand.22 So I note on page 2 of your report and at23 paragraph 6 you list the sources of international24 law. I want you to just talk a little bit about25 what the sources of international law are.26 A According to article 38 of the statute of27 International Court of Justice there are four28 sources. One is international conventions; the29 other is international custom; the third is30 general principles of law recognized by civilized31 nations; and the fourth is judicial decisions and32 teachings of the most highly qualified publicists.33 In the report I rely on international34 conventions and international customary law. In35 those sources there is definitely a hierarchy and36 at the top of the hierarchy are international37 conventions, whether general or particular, and38 that is based upon a basic principle of39 international law that treaties are to be kept.40 The Latin term is pacta sunt servanda.

41 Q And just so that I'm clear in my mind, is there a42 difference in international law between a treaty43 and a convention, or are those interchangeable44 terms?45 A Those are interchangeable terms. Another term46 that's used is covenants, such as the47 International Covenant on Civil and Political




1 Rights. And that again is interchangeable with2 treaties and conventions.3 Q So sometimes you will hear the expression and see4 the expression "treaty-based international law."5 Can you elaborate on that a little bit?6 A Treaty-based international law is international7 law that has been developed by the bodies that8 have been established under the international9 conventions. Sometimes this law is persuasive;10 sometimes it's considered dispositive, and it11 varies from treaty to treaty and issue to issue.12 Q Now, in your opinion are there particular13 international conventions or international human

14 rights treaties that you consider to be most15 relevant to legal treatment of polygyny?16 A Yes, in the report I address the Convention on the17 Elimination of Discrimination Against Women, the18 Women's Convention, the International Covenant on19 Civil and Political Rights, the International20 Covenant on Economic, Social and Cultural Rights,21 and last but certainly not least, the Convention22 on the Rights of the Child.23 Q And perhaps I'll stop at this point for the24 court's benefit. Those conventions and treaties25 have all been included in the binder.26 THE COURT: Thank you.27 MR. REIMER: So as necessary we can refer to those.28 Q Now, have all of those covenants or treaties --29 conventions been assented to or ratified by30 Canada?31 A Yes, Canada is what is called a "state party" and32 have obligations to take all appropriate measures33 to implement those conventions domestically and34 internationally.35 Q And with that obligation to take all appropriate36 measures to implement treaties and obligations is37 there a body or organization that is responsible38 for monitoring whether or not a state complies its39 treaty obligations?40 A Yes, each convention has a committee, a body. For

41 example, the Women's Convention has a committee42 that monitors how states have brought their laws,43 policies and practices into compliance with the44 Women's Convention. That committee is called the45 Committee on the Elimination of Discrimination46 Against Women.47 The civil and political covenant also has a




1 committee, the Human Rights Committee, which in2 fact is the oldest part of the human rights treaty3 bodies. The economic covenant has a committee,4 the Committee on Economic, Social and Cultural5 Rights, and the children's convention has a6 Committee on the Rights of the Child. And each of7 those bodies monitors on an annual basis reports8 that are submitted to it by states on what states9 have done to bring their laws, policies and10 practices.11 So you have state reports and then on those12 reports committees will give concluding13 observations, and it's those concluding

14 observations on polygamy that we looked at -- that15 I looked at to assess the nature of state16 obligations with regard to polygyny.17 Q And do those treaty bodies -- I have also seen18 reference in your report to general comments or to19 general recommendations and perhaps I should ask20 that question first. Are those the same thing, a21 general comment and a general recommendation?22 A General comments and general recommendations are23 interchangeable terms. Some committees use the24 term "general recommendations." Other committees25 use "general comments," but they -- both of them26 are general guidance, if you will, by the27 committees with respect to particular articles.28 For example, I refer to general recommendation 2129 of the Women's Committee with regard -- it30 develops the contents and meaning of article 16 on31 women's rights in marriage and family.32 Q Okay.33 A So these are very helpful guidance to -- by the34 committee to the states on what states are35 required to report on what they have done to bring36 their laws, policies and practices into37 compliance.38 Q So that's sort of a brief discussion of39 treaty-based international law. The other40 expression that I have seen is "customary

41 international law." Can you talk about that42 briefly.43 A Customary international law is evidence by general44 practice that states follow out of a sense of a45 legal obligation. So general customary46 international law, if you will, is developed by a47 path, but a path that states follow out of a sense




1 of legal obligation.2 Q When you talk about that sense of legal obligation3 is that what you'll often see as opinio juris, to4 misuse the Latin I'm sure, but...5 A Exactly.6 Q Okay. If we can turn then to the literature7 review that you did which start at paragraph 20 on8 page 7 of your report. You discuss various9 materials that you reviewed for the purpose of10 this report. Can you tell us what materials you11 did review in the course of preparing this report?12 A Yes, we looked first and foremost at the general13 recommendations of the treaty bodies, and some of

14 the general recommendations specifically address15 polygamy. For example, general comment 28 of the16 Human Rights committee deals specifically with17 polygamy. General recommendation 21 of the18 Women's Committee specifically deals with19 polygamy. So we reviewed those as being the most20 persuasive of treaty law. And then I looked at21 the concluding observations of the committee on22 state reports that deal specifically with polygamy23 but also, particularly with regard to the24 Committee on Economic, Social and Cultural Rights,25 sometimes you refer to customary traditional26 practices. So some committees will talk about27 general practices and included in those28 traditional practices will be references to29 polygamy.30 So those were the -- really the primary31 sources that I used.32 In addition there were some law review33 articles and a little bit of the social science34 literature that was used that would elaborate some35 of the associated harms.36 Q And did you look at any materials relating to37 state practices or policies?38 A There's -- mostly the materials that I looked at39 were the concluding observations on the state40 reports.

41 Q Now, in your review of the materials you were42 asked to look at harms as from an international43 human rights law perspective. Did you limit your44 review to materials that evidenced harms?45 A As the treaty bodies thought about the harms of46 polygamy, yes, because they did not think about47 polygyny as anything but harmful.




1 Q And from your review of those materials what was2 your conclusion?3 A In terms of the review of those materials one4 conclusion was that the inherent wrongs of5 polygyny were considered a violation of6 international human rights law and in particular7 conventions. So patriarchal structuring of family8 life that enables a man to take multiple wives but9 not vice versa offends women's dignity. "Dignity"10 is a term that's specifically used by the Human11 Rights Committee in their general recommendation12 28 on equality of rights between men and women.13 I think it's a very significant term because

14 the purpose of international human rights law is15 to protect and to promote the dignity of the16 individual. And that term is used in the17 universal declaration. It is also used in the18 international -- the preamble of the International19 Covenant on Civil and Political Rights, and the20 preamble of the Women's Convention.21 Q Perhaps if I can ask you now to take us to the22 specific comments or statements that the treaty23 bodies have made with respect to the practice of24 polygyny, and I know you have already referred to25 a number of general comments from both the Human26 Rights Committee and I believe from the Women's27 Committee. I am hoping you can perhaps take us to28 those materials, which should be in the binder.29 A The specific -- with regard to the Women's30 Convention which is at tab 1 of the binder, the31 general -- and in their general recommendation 2132 which is at tab 2, in paragraph 10 of general33 recommendation 21 at tab 2 the Women's Committee34 specifically says that:3536 [Polygynous] marriages contravenes a woman's37 rights to equality with men, and can have38 such serious emotional and financial39 consequences for her and her dependents that40 such marriages ought to be discouraged and

41 prohibited.42 Q Sorry. And what paragraph was that in, in general43 recommendations?44 A That's general recommendation 14.45 Q Okay.46 A Of general recommendation 21, which is at tab 2.47 Q And then I think the other one that you referred




1 to was a comment from the Human Rights Committee.2 A Right. But I first want to complete my answer to3 your previous question.4 Significantly, general recommendation 21 of5 the Women's Committee also at paragraph 14 notes6 with concern that some states parties who7 constitutions guarantee equal rights that permit8 polygynous marriages in accordance with personal9 or customary law, that that violates the10 constitutional rights of women and breaches in11 particular article 5(a) of the Women's Convention.12 Now, article 5(a) of the Women's Convention13 at tab 1 is the article that deals with

14 stereotyping, hostile or negative degrading15 stereotyping of women.16 So the fact that the Women's Committee thinks17 about -- thinks about polygyny as a form of18 discrimination, and a form of discrimination19 according to article 5 that thinks about women as20 inferior because of how they are stereotyped in a21 polygynous relationships is very significant.22 Q And then turning to the Human Rights Committee and23 its general comments on -- that dealt with the24 issue of polygyny, what does the Human Rights25 Committee say?26 A The Human Rights Committee, their general comment27 on -- yes, it's not included in the binder but it28 is referred to there, general comment 28 on29 equality of rights between men and women. It's30 referred to in my report at page 7 at31 paragraph 21. And this is a general comment --32 Q I'm sorry. Perhaps I can stop you there. Is this33 a document that's at tab 7, a general comment?34 A Yes. I'm sorry.35 Q Number 28?36 A It's at tab 7 in the binder.37 Q And is there a particular paragraph you're38 looking?39 A Yes, the particular paragraph that is significant40 is paragraph 24.

41 THE COURT: And just for the record, the binder we're42 referring to is Exhibit 120.43 MR. REIMER: Thank you.44 Q And what is it -- you refer to sub-paragraph 24,45 is there a particular portion of that that you46 consider particularly significant?47 A Yes, that equality of treatment with regard to the




1 committees.2 THE COURT: Excuse me, it would help me if I could3 understand more clearly. The views of these4 committees under the various conventions or5 treaties are in some cases simply guidance to the6 signatories but in other cases carry the force of7 law, if you like, or am I wrong?8 THE WITNESS: I think the best way to explain it is its9 persuasive authority, and what you do when you10 look at the concluding observations on state11 reports is look for trends. And what is12 significant about the concluding observations and13 in the trends is they're consistent. They

14 don't -- they -- they consistently note with15 concern the wrongs and associated harms and ask16 states to address those.17 THE COURT: Okay. So is that true of all18 recommendations by the various committee under all19 of the Exhibit 120 treaties?20 THE WITNESS: It's true of all the concluding21 observations on state reports that deal22 specifically with polygamy, yes. There's only two23 committees that have issued general24 recommendations that deal specifically with25 polygamy.26 THE COURT: Okay. And they are for guidance and they27 are persuasive?28 THE WITNESS: Yes.29 THE COURT: But you cannot say that they are part of30 the rule of law, if you like.31 THE WITNESS: No, no.32 THE COURT: Okay.33 THE WITNESS: But they do indicate also that -- you34 look for trends and they also indicate what might35 become customary international law, because states36 are acting against polygynous forms out of a sense37 of obligation. So in addition to it as treaty law38 it gives -- it provides evidence for what is39 evolving customary international law.40 THE COURT: Thank you. Thank you. Sorry.

41 MR. REIMER:42 Q No, and I just might on that point, and perhaps43 come to it a bit later, but I note on -- in44 paragraph 228 of your report starting at page 8045 you address this issue with respect to the impact46 or the effect of international law, international47 human rights law, customary law on the Canadian




1 domestic system. And you talk about informing the2 interpretation of the charter?3 A Yes. Right.4 MR. REIMER: My Lord, this might be an appropriate time5 for a break just before we launch into the next6 section.7 THE COURT: Okay. Thank you. Court is adjourned for8 the morning recess.9

10 (WITNESS STOOD DOWN)11 (MORNING RECESS)1213 THE CLERK: Order in court.1415 REBECCA COOK, a witness16 for the AG of Canada,17 recalled.1819 THE COURT: Thank you. Mr. Reimer.20 MR. REIMER: Thank you.2122 EXAMINATION IN CHIEF BY MR. REIMER Continued:23 Q Professor Cook, I would like to go back to the24 question that His Lordship raised, dealing with25 the significance of the effects of these general26 comments, the general recommendations, the27 concluding observations. Can you just explain in28 simple terms what the significance is of a29 concluding -- sorry, why don't we start with30 general comments or general recommendations first31 and just talk about those from an international32 perspective and also perhaps from a domestic33 perspective.34 A General recommendations and general comments I35 said act as guidance to states in terms of36 elaborating the content and meaning of a

37 particular article or a particular theme within a38 convention. But in a way I think one could say39 they're more than just guidance. They're40 somewhere between guidance and regulations under a41 statute, for example, domestically.42 Now, international law, when I referred to43 the sources of international law of there being44 four sources of international law. The first45 three sources, conventions, international46 customary law and general principles, are law



47 determining. And then the fourth source -- no,




1 sorry, the first three sources are law creating2 and the fourth source is law determining.3 So one could think of general comments and4 general recommendations as law determining. They5 help determine the scope -- the content and scope6 of an article. But they get used in a way that7 can be -- over time be law creating. They get8 used not only by state parties in reporting but9 they get used by domestic courts in understanding10 the obligation and there they would take the force11 of law. They get used as law creating by regional12 and other international regional human rights13 courts under regional human rights treaties. And

14 they get used by other -- by other human rights15 treaty bodies.16 So it's -- the domestic analogy is not quite17 regulations under a statute because they are not18 binding, but they do become binding in how they19 get used and thus can have the force of law over20 time.21 In international law we make the difference --22 the distinction between soft law and hard law, and23 it's a matter of judgment how hard some of these24 general comments and general recommendations, how25 hardened they have become.26 Q And that leads, perhaps, me to a more general27 question, which is how international treaty law28 obligations are enforced. What is it that compels29 states to abide by their -- by their obligations?30 A International law has no police force the way a31 domestic law does, so international law becomes32 enforceable out of a sense of obligations and a33 commitment to keeping the treaties, the pacts you34 have made. But the international human rights35 equivalent of a police force is shame, so where36 these general comments and general recommendations37 are used, say, in reporting to countries are very38 important because where countries do not comply39 then they are shamed internationally. And no40 country wants to become a pariah state.

41 Q Going back then to the wrongs and the harms that42 are identified by the international treaty bodies,43 on page 13 of your report starting at paragraph 3944 you talk about some of the associated harms that45 have been identified or expressed by the treaty46 bodies regarding the practice of polygyny. And47 I'm going to ask you if you can go through those




1 harms that have been identified by the treaty2 bodies and focussing particularly on the concerns3 that have been expressed by the treaty bodies of4 the associated harms or the harms associated with5 the practice of polygyny.6 A The associated harms as articulated by the treaty7 bodies are primarily articulated in the reports of8 state parties to the treaty bodies as well as in9 the concluding observations.10 So the first area that I deal with is in11 terms of the mental health harms that have been12 identified, family stress, depressive disorders,13 low self esteem and feelings of disempowerment,

14 and increased risk of physical and mental violence15 in polygynous marriages. So you have a variety of16 state reports talking about those mental health17 harms as well as which result from the competitive18 co-wife relationships.19 These harms are also noted by the UN special20 rapporteur, say, on violence against women. The21 UN has special rapporteurs, say, on torture. They22 have one on violence against women, they have one23 on health. And so you see the actual harms24 articulated by the UN special rapporteurs25 Q Can you be more specific about the types of harms26 that have been recognized or commented on by the27 rapporteur?28 A Yes. The UN special rapporteur on violence29 against women, and this would be go to the30 structural asymmetry of the marriage relationship,31 because the continuing threat to a women of the32 husband being able to take a second wife requires33 her to be more obedient and therefore cannot34 exercise her rights. So that was a particular35 harm that was articulated by the UN special36 rapporteur on violence against women.37 The sexual and reproductive health harms have38 been articulated in actually a general39 recommendation of the women's committee dealing40 with women's health. They refer to polygyny as a

41 harmful traditional practice that exposes women42 and girls to an increased risk of sexually43 transmitted diseases. Where you have concurrent44 sexual networks as through polygamy you have an45 increased risk of HIV AIDS and sexually46 transmitted diseases, and that has been referred47 to in the general recommendation of the women's




1 committee on health and women's rights as well as2 the declaration of the UN general assembly on HIV3 AIDS, which specifically talks about the increased4 risk of HIV AIDS through harmful traditional5 practices.6 Q And you've actually set out those statements from7 those bodies in paragraph 55 of your report?8 A Paragraph 55 with regard to HIV AIDS and the9 general recommendation on women and health,10 essentially polygamy being a risk factor for11 increased AIDS and then the threat of taking a12 second wife is being used to control women.13 That's at paragraph 52 on page 16.

14 Q Now, you touched on it briefly in your comments15 now. You talked about some of the harms arising16 from competitive co-wife relationships and you go17 into this in a little bit of detail in18 paragraphs 43 and 45 of your report. Have the19 international -- have the states or the20 international treaty bodies commented on these21 harms arising from co-wife relationships?22 A Yes, there has been one initial report by one23 state party talking about the unequal distribution24 of household goods creating inheritance problems25 and other domestic squabbling, and its impact,26 particularly in that report, on children. That's27 at footnote 45.28 Q And then you were talking about sexual and29 reproductive health harms. You then identify, on30 the next page you talk about material harms to31 women of polygynous unions. Is this also the type32 of harms that have been recognized by treaty33 bodies or by states?34 A Yes, actually I do not -- wait a minute. Yes,35 there's one reference in one state report to the36 economic strains of polygynous relationships, of37 polygynous unions. And the economic harms that38 can be particularly serious in societies that are39 increasingly urbanized.40 Q Why would that be?

41 A Because the -- in an urbanized setting as42 contrasted to an agricultural setting you need43 cash -- in an agricultural situation, yes, you44 need cash but it's not -- the marriage isn't in a45 cash economy to the extent that it is in urbanized46 settings. So where the family income has to be47 spread among several co-wives you're going to have




1 actual material harms to some of them that don't2 get as much of the pie as another wife.3 Q And then the last section on the associated harms4 on page 19 and starting at paragraph 61 you talk5 about harms to children of polygynous unions.6 A The harms to children in polygynous unions are7 multiple, as identified by some of the treaty8 bodies, and they include the problem of gender9 stereotyping. The potential to internalise10 harmful gender stereotypes can be harmful11 particularly to girl children over their lifespan.12 The other harm that has been identified is13 that of early marriage and pregnancy for

14 adolescent girls in polygynous unions.15 And in terms of the lost boys there are harms16 to them in terms of denial of family life to the17 lost boys that are essentially excommunicated from18 the family unit.19 Q And these are harms that have been recognized by20 states and the international treaty bodies?21 A Some have. Some have been identified in the22 literature. In terms of the jealousy, conflict,23 tension and emotional stress the impact of that on24 children has been addressed in a report of state25 of parties at reference 89.26 Another report referenced at 91 deals with27 depriving children of getting the much needed28 parental guidance in polygynous unions.29 And finally that -- in reference 93 at30 paragraph 67 are children from polygynous families31 it's been noted in a report to -- in this case it32 was to the Committee on the Rights of the Child33 that children are neglected or poorly provided for34 by their fathers, leading them to being more35 vulnerable to abandonment.36 Q Okay. At this time then, Professor Cook, I would37 like to turn your attention to the issue of state38 practice and opinio juris, and particularly state39 practice regarding the practice of polygyny. You40 discuss state practices starting at page 23 of

41 your report and at paragraph 68. I just wonder if42 you could talk generally about what you've43 concluded about state practices regarding44 polygyny.45 A Okay. Generally speaking state practice falls46 into three different categories. One is outright47 prohibition in a majority of states through




1 criminal prohibitions or family law prohibitions.2 Then you have the state practice of3 restrictions on polygyny in parallel legal systems4 such as personal law or customary law. And5 finally you have an emerging state practice with6 regard to immigration restrictions on polygynous7 marriages, where polygamy is a bar to immigration.8 So those are the three general areas that we9 discuss -- that I discuss in state practice and10 opinio juris.11 Q And in simple terms were you able to discern a12 dominant trend in state practice with respect to13 the practice of polygyny?

14 A With regard to out right prohibition you see a15 dominant state practice of the use of criminal law16 to prohibit polygyny, but that's not the only17 means that have been used. It's also family law18 as well as non-legal measures. Non-legal measures19 such as education -- education, rural outreach20 programs. So I think one could conclude by saying21 that there is a mix of appropriate measures and22 the states are -- really have to justify why their23 measures are appropriate to effectively eliminate24 polygyny.25 Q Now, turning then to those three things that26 you've identified, the outright prohibition, the27 restrictions on polygyny, you talk about outright28 prohibition starting at paragraph 74 on page 26.29 And you state in the very first part of that30 paragraph that a majority of the states in the31 world prohibit polygyny through criminal32 prohibitions of polygyny or bigamy. Can you talk33 sort of regionally about how those prohibitions34 have been evidenced in practice.35 A Regionally, for example, in -- starting with36 Africa you see that states on an increasing basis37 are outlawing polygyny. Very significantly Benin,38 a Francophone country, its constitutional court39 concluded that the family law reform that40 prohibited polygamy was consistent with its

41 constitution, particularly its constitutional42 guarantee of equality of men and women.43 That decision was in 2002. So not only did44 they outlaw polygyny but the rationale that they45 used is very significant. Up until maybe a decade46 ago the predominant rationale for prohibiting47 polygamy was the protection of monogamous




1 marriages, that monogamous form of marriages, or2 to prevent fraud against persons or the state.3 And most recently you've seen a rationale emerge4 of women's equality and also, not as5 significantly -- not as predominantly but perhaps6 as significantly, the theme of outlawing or7 prohibiting polygyny to protect the interests of8 children.9 That's with regard to Africa. Now, I could10 go on and talk about other regions.11 Q Yes, please.12 A Significantly in Australia and Oceania there was a13 very important report in Australia on

14 multiculturalism there was an initiative to try to15 get -- to change the law to recognize polygyny and16 the law reform commission of Australia did not17 recommend recognizing the legal status of polygamy18 because it would offend women's rights. It was a19 1992 report of Australia.20 In Europe significantly you see the21 developments in France. In 1993 after experience22 in France with allowing -- with allowing23 polygamous families to emigrate to France they24 finally in 1993 decided to abolish polygamy.25 Also in 2003 the constitutional -- the French26 constitutional council upheld a prohibition of27 polygamy in one of its territories, and the28 rationale was that people that are subject to29 personal status law also in their French territory30 are allowed to enjoy the rights and freedoms31 associated with French citizenship.32 So in -- if you consider Turkey a part of33 Europe, that polygamy has been outlawed there.34 Also in another Islamic country, referring back35 Africa, it's been outlawed in Tunisia. And that's36 a fascinating rationale because under Islamic law37 you're only allowed to practice polygyny if you38 can be fair to all wives and the Tunisian39 illegalization in 1964 was based on the thinking40 there was a practical impossibility of being fair

41 to all wives. And you see that rationale emerge42 in other ways and other contexts in Islamic43 countries.44 Q Now, you didn't touch on Asia, which I note you45 address on page 28 in paragraphs 78 and 79.46 A Yes. Particularly those countries in western Asia47 or the "stan" countries you see most recently in




1 the concluding observations of the report of, say,2 Turkmenistan and Uzbekistan, that they have3 criminal prohibitions against polygyny, but they4 have been asked by some of the treaty bodies to5 actual enforce those criminal prohibitions.6 Q So I come back to the earlier part of your report.7 Is it fair to say that a majority of states around8 the world prohibit polygyny?9 A Yes.10 Q And is there a growing trend in that direction?11 A Absolutely a growing trend. A discernible trend.12 Q And is that trend true around the world, and I'm13 thinking of Africa in particular, or do you see

14 that trend globally?15 A Yes, what is significant in terms of Africa is you16 see quite a few developments with regard to the17 actual prohibition. I mentioned Benin, Mauritius18 is another country that actually applied the19 International Covenant on Civil and Political20 Rights to uphold a prohibition against polygamy21 against a claim of freedom of religion. That's22 referred to at page 76, paragraph 216 on23 restrictions against -- possible restrictions on24 polygamy.25 With regard to restrictions on polygamy,26 significantly the South African constitutional27 court, while there have been claims within South28 Africa to ensure protection of women in polygynous29 unions that they have to be treated equally with30 women in monogamous unions, and the South African31 constitutional court actually last summer32 upheld -- held an inheritance law unconstitutional33 because of the discrimination between monogamous34 and polygamous women, Muslim women married in35 monogamous situations and polygamous situations36 and women in customary situations. They wanted to37 make sure that all women in South Africa38 regardless of the form of marriage are treated39 equally in marriage for purposes of inheritance.40 Q Now, if we go to page 35 in your report,

41 paragraph 102, you've gone through sort of42 regionally a global view in this -- described as a43 trend toward prohibition. Is there also -- in44 those countries where polygyny is not being45 prohibited or has not been prohibited yet, is46 there a discernible trend in those countries'47 treatment of polygyny?




1 A Yes, there's a discernible trend to restrict2 polygyny in certain ways. For example, through3 notice requirements, requirements that the first4 wife, if the man intends to take a second wife,5 must be given notification, and in some situations6 must agree or it can be a grounds for divorce if7 she doesn't agree. So it creates what is called8 "divorce benefits" for the first wife which is9 significant under Muslim law because she has no10 ability to divorce.11 So it gives her significant powers of12 divorce. In addition to the notice requirements13 there's also authorization requirements that we

14 discuss starting at paragraph -- that I discuss15 starting paragraph 106, and the government, in16 large part through courts, have to authorize the17 taking of a subsequent wife and it usually depends18 upon the financial capacity to maintain multiple19 wives. So you see really these conditions, the20 restrictions on polygyny make it more difficult to21 have polygynous unions.22 I think it's also significant to note -- to23 highlight the constitutional court of Indonesia, a24 very significant decision of that court in 200725 where there was a challenge to judicial and26 spousal permission requirements and the court27 upheld those restrictions based upon the equality28 between men and women. So not only do you see a29 discernible trend in the restrictions and in the30 prohibitions but you see a discernible trend in31 the rationale for these trends.32 I highlight one other country which I think is33 significant. So Morocco, essentially through a34 very significant family law reform initiative in35 2004, they didn't outright prohibit polygamy but36 they said it's forbidden when there's a risk of37 inequality in equity. So if you go back to the38 Tunisian rationale of saying it's impossible for a39 man to be impartial to all wives, that in essence40 in Morocco is pretty much prohibited, even though

41 they do it in a more delicate manner than outright42 criminal prohibition43 Q And then finally I understand on page 38 you44 discuss polygyny in parallel legal systems, and45 you talk about some domestic systems particularly46 in the African context operating in a parallel47 legal systems. And you've already talked about




1 the South African experience, I wonder if you2 could just expand on that developments in that3 context.4 A So in many African countries you can either marry5 under the civil law or in a parallel legal system,6 customary law or Muslim law. And what -- so7 polygyny is generally prohibited in many of these8 countries in the civil law system but it's still9 permitted in the parallel legal system. So what10 happens is people will marry within that system to11 enable to them to take a second wife. And they12 will gain -- men sometimes will gain the system13 and you will see that in some of the concluding

14 observations. They'll marry civilly and then15 they'll marry again in the parallel system and16 thus enabling them to take a subsequent wife. So17 there's a lot of that going on.18 South Africa significantly is trying to be19 culturally sensitive and sensitive to religious20 traditions, and they're trying to make the rights21 women in all of the systems equal. And they have22 moved in that direction.23 Q Sorry. Go ahead. And has the Women's Committee,24 the CEDAW committee, have they commented on the25 parallel legal systems and the permission of26 polygyny in some of the systems?27 A Yes, and they note it with concern, which is the28 diplomatic language for condemning it.29 Q And is there a rationale? Is there --30 A Yes, because they're very concerned about the fact31 that it's an affront to women's equality rights32 and also they are very concerned about women's33 rights, that women's rights within polygynous34 unions are protected.35 Q Then as a final aspect of state practice you36 looked at immigration practices and trends in37 immigration laws and policies around the world.38 Can you talk about those policies and whether or39 not again you were able to discern the trends in40 those practices and policies?

41 A Polygamy is a bar to immigration in most western42 states. I think the developments in France are43 very significant, that France before it changed44 and had a bar to polygamy -- the change was in45 1993, the law of Pasqua that I discuss at46 paragraph 130.47 The experience with polygynous families in




1 France became so problematic for women and their2 children, multiple wives couldn't access the3 health care system, they couldn't access the4 welfare system, sort of family benefit system.5 And because polygynous families had to live in6 very small quarters primarily in urban centres in7 France it became very, very stressful and had lots8 of consequences, not only for women but families9 and children, so they moved to -- to bar polygamy10 in immigration.11 Q Had France prior to that been allowing the12 immigration of polygynous families?13 A Yes, yes. As has been noted I think they probably

14 still have some work to do in terms of protecting15 the rights of women in existing polygynous16 families and the retroactive effect of that 199317 law has caused complications, but basically they18 have now barred polygyny as -- in immigration.19 The other discernible trend in immigration20 which I think is significant, although not21 commented on in -- by the treaty bodies but I22 don't think it will be too long before it is, is23 the fact, for example, Canada and Australia, now24 polygamy is a bar to immigration. But in contrast25 to the US and the UK, in Canada and Australia it26 is only the first wife that is a potentially a27 possible applicant. The immigration policy of28 Canada was changed quite significantly in29 reference 222 and page 42 that it is only the30 first wife that can be a potential -- if the man31 wants to -- he cannot just automatically select32 the second wife. He has to show divorce of the33 first wife in the country of origin.34 Q And in paragraph 127 you refer to the35 criminalization of polygyny or polygamy as a basis36 for exclusion under most immigration laws. Is37 that a general?38 A Right. The continued criminalization of polygyny39 is probably -- well, I would say it is very40 important to the continued bar of polygyny in

41 immigration policies, and that's because criminal42 conduct is a basis for exclusion under most43 immigration laws.44 Q So Professor Cook, you've talked about what the45 international treaty body bodies have said with46 respect to the practice of polygyny and we have47 talked about state practices when it comes to the




1 prohibition and the trends there.2 I ask at this time if you can turn to the3 nature of Canada's obligations under international4 law, and you deal with this in your report on5 page 47 starting at paragraph 134. And I just6 wonder if you could talk generally about Canada's7 obligation with respect to polygyny under8 international law?9 A Well, first and foremost Canada has obligation to10 take all appropriate measures to eliminate11 polygyny. Now, the term "all appropriate12 measures" is significant in contrast to "any13 appropriate measures." So it's determining what

14 mix of measures and what context and why.15 Q And where does that obligation flow from? You16 talk about Canada having an obligation to take all17 appropriate measures. Where does that obligation18 come from?19 A That comes from the wording -- well, the wording20 of the Women's Convention as well as other21 international human rights treaties. All22 appropriate measures and the obligation to take23 all appropriate measures is elaborated in general24 recommendation 28 of the Women's Committee, which25 is in the document 120 and it's included in tab 4.26 Now, what's important about general27 recommendation 28 is that the burden is put on the28 states to justify why the measures are29 appropriate. And this would be -- let's see. The30 paragraph number -- paragraph number 23, states31 need to justify the appropriateness of particular32 means it has chosen and to demonstrate whether it33 will achieve an intended result.34 Now, the states are obligated to justify that35 but the ultimate -- they have discretion, but the36 ultimate -- as the committee says, the ultimate --37 in general recommendation 28, the ultimate arbiter38 is the Women's Committee itself on whether a39 particular measure is appropriate.40 Q And how have the treaty bodies and individual

41 states interpreted and understood that idea of all42 appropriate measures? What have they viewed as43 all appropriate measures?44 A You can -- the treaty bodies from the general45 recommendations and general comments, for measures46 to be appropriate you look to those general47 comments and general recommendations. So, for




1 example, general recommendation 21 of the Women's2 Committee suggests that for measures to be3 appropriate they have to address the ways in which4 polygyny denies women their rights, and they have5 to address the rights of women in polygynous6 marriages, and they have to address the underlying7 stereotypes of women in polygynous unions.8 So the -- the appropriateness of the mix of9 measures is going to vary somewhat from context to10 context, but from general recommendation 21 it's11 my opinion that for measures to be appropriate12 they have to address equality, they have to13 address the rights of women in existing unions and

14 they have to address the underlying stereotypes of15 women in polygynous unions.16 Q And have states felt obligated to criminalize17 polygyny as part of their all appropriate18 measures, or have many states felt obligated to do19 that?20 A Yes, many states do think -- well, actually use21 the criminal prohibition as an appropriate22 measure, as an important part of the mix of23 appropriate measures.24 Q Now, you have already talked about this this25 morning but perhaps if you can summarize it again26 for us. You've talked about states' obligations,27 Canada's obligations to take all appropriate28 measures to eliminate polygyny and the treaty29 bodies have called on states to take all30 appropriate measures. Can you explain the31 rationale for that. What is the underlying basis32 or are there other obligations that flow into33 that -- that's a very sort of specific obligation.34 Are there sort of more general obligations that35 animate that?36 A So the specific obligation with regard to the37 elimination of polygyny and then the more general38 obligations to eliminate discrimination in39 marriage and family life and the more general40 obligations to eliminate the detrimental forms of

41 gender stereotyping are the two overarching42 obligations that exist that we address in the43 report.44 Q Okay. Because you go through in your report45 starting at pages 56 you've talked about --46 actually even before that you talk about47 obligations to ensure the equality of women,




1 obligations relating to health and security of the2 person, obligations to ensure the children's3 rights. How do those relate to this obligation to4 take all appropriate measures to eliminate5 polygyny?6 A Well, one might think about them in terms of7 collateral obligations that if -- for example, the8 obligations to dismantle the stereotyping that is9 inherent in polygyny or to modify customs and10 practices which constitute discrimination,11 those -- you can't really abolish polygyny12 completely unless you address those collateral13 obligations.

14 Another way to think about it might be that15 the Women's Convention requires that direct16 discrimination on the face of the law be17 eliminated, then indirectly discrimination be18 eliminated in the effect or the law, and then the19 structural forms of discrimination. This I20 explain in paragraph 153 on page 56. So the21 structural forms of discrimination in family22 structures and social systems have to be23 dismantled to achieve equality of men and women in24 marriage and family relations.25 Q And is polygyny then seen as a structural form of26 discrimination?27 A Yes. And that -- those -- those different forms28 of discrimination and state obligations to address29 them are addressed in general recommendation 25 of30 the Women's Committee, which is not included in31 120 but it is explained at paragraph 153 and32 footnote 303 of the report.33 Q And then can you just talk briefly -- on page 5934 you talk about obligations to dismantle35 stereotyping as a form of discrimination.36 A The obligation to dismantle stereotyping as a form37 of discrimination is in some ways one of the most38 particularly -- is a very significant aspect of39 the Women's Convention, particularly article 5A40 and article 2F.

41 So the obligation as explained in 164 is to42 address prejudices and customary practices that43 are based upon stereotypes concerning the44 inferiority of either of the sexes or on45 stereotyped roles. So where a family structure46 fosters inferiority of one sex over one or the47 other or stereotyped roles that require women to




1 take on certain roles in families and in community2 life, that is a form of discrimination.3 So the Women's Committee and this article is4 cited by other committees, particularly the5 Committee on Economic, Social and Cultural Rights.6 The Women's Committee is very concerned about the7 social practices of gender subordination. They8 look at the structural practices that go on in9 society that subordinate women, and they do this10 through naming and articulating the actual11 stereotypes that take place.12 I might add that international human rights13 law with regard to negative gender stereotype

14 has -- I think it would be fair to say has15 progressed significantly in the past few years.16 You have the most recent decision of the committee17 on the elimination of discrimination against women18 the Women's Committee in a communication19 concerning the Philippines. Although the20 communication does not deal with polygyny it does21 deal with stereotyping in the race context. And22 so you have a parallel development in23 international human rights law dealing with24 negative gender stereotyping as a violation of25 women's rights. So the committee in the Vertido26 decision, which we don't cite -- I don't cite in27 the report because it just came out this fall, is28 a very significant development. I do cite in the29 report a decision of the Inter-American Court of30 Human Rights on -- it's a -- disappearances of31 women and how women were denied access to justice32 because of how they had been stereotyped, and the33 court significantly takes judicial notice of34 stereotyping.35 And most recently the European Court of Human36 Rights in a case against Russia looked at gender37 stereotyping in the military context. So while38 none of these cases deal with polygyny, they do39 deal with gender stereotyping and are elaborating40 a norm that it is a violation of women's rights to

41 equality to be stereotyped, or men's rights to42 equality to be stereotyped as in the case before43 the -- decided recently by the European Court of44 Human Rights.45 Q Okay. And perhaps just before the noon recess,46 you talk about a few other obligations -- on47 page 63 you talk about the obligation to ensure




1 equality and marriage of appeal family law. You2 talk about health and security of the person, and3 finally on obligations to ensure children's4 rights. Can you just talk briefly about those5 obligations?6 A The obligation to ensure equality in marriage and7 family life is to make sure that rights, duties8 and benefits in marriage are not distributed9 unequally. And the committee has specifically10 called on states to ensure that women are equal in11 marriage and family life. That is both the Human12 Rights Committee and the Women's Committee.13 So marital systems or marital forms that

14 distribute rights, duties and responsibilities15 unequally according to sex, and this happens in16 the case of polygyny and also happens in other17 kinds of family law issues, that has been18 recognized by the committees as violating women's19 rights to equality in the marriage and family20 relations -- marriage and family life.21 Q Now, earlier you talked about some of the harms22 that had been identified or associated with23 polygyny including some of the health harms to24 women and children, and on page 67 you talk about25 an obligation relating to health and security of26 the person. Can you talk about how those concepts27 interrelate.28 A The Committee on Economic, Social and Cultural29 Rights elaborates a right to health and they30 require states not only to ensure access to basic31 health services but to look at risk factors for32 poor health. So insofar as polygyny in that it33 enables concurrent sexual relations, that is a34 risk factor for sexually -- increased sexual35 transmitted diseases including HIV.36 So this is a very significant part of the37 work of the Women's Committee in not only thinking38 about polygyny in the context of marriage and39 family relations but also in the context of40 women's -- protecting women's health.

41 Also to the extent that polygyny undermines42 women's mental health, to the extent that polygyny43 dis-empowers women, prevents women from developing44 their own life plan in contrast to men, that is --45 offends their rights under the Women's Convention46 to equal access, to mental health, which is very47 important.




1 In terms of children -- should I proceed?2 Q Yes.3 A In terms of children one -- the children's rights4 committee has looked at the problem of early5 marriage and early pregnancy that can cause all6 kinds of problems for the girl child. In fact,7 where children marry and have children,8 particularly below -- I think the key age is 18,9 they're at much higher risk of death in pregnancy10 in child birth. And there has been a huge11 international initiative through the work of the12 World Health Organization and the millennium13 development goals to reduce pregnancy-related

14 death, particularly death in child birth.15 So where polygyny enables early marriage and16 early pregnancy the children's committee is very17 concerned with early marriage and early child18 bearing, but they also are not ignorant of the19 mental health problems of polygyny on children.20 MR. REIMER: My Lord, if I might, we're at a sort of21 natural breaking point here. I don't think I have22 much longer with Professor Cook, probably in the23 neighbourhood of half an hour is a realistic24 estimate, I think. So I'm going to suggest25 perhaps if we take the noon recess now. I have26 spoken to my friends, with the amicus, and I27 understand about an hour roughly.28 MS. HERBST: Maybe an hour and a half.29 THE COURT: So we'll be going into tomorrow in all30 likelihood?31 MR. REIMER: It will be close.32 THE COURT: Okay. Thank you. We'll take the break.33 THE CLERK: Order in court. Court is adjourned until34 2:00 p.m.3536 (WITNESS STOOD DOWN)37 (NOON RECESS)3839 THE CLERK: Order in court.40 THE COURT: Thank you, Mr. Reimer.

41 MR. REIMER: Yes, My Lord.4243 EXAMINATION IN CHIEF BY MR. REIMER: (Continued)44 Q Professor Cook, I would ask you to turn your45 attention now to the issue of how the obligation46 to eliminate polygyny has been balanced against47 other rights and international human rights laws.




1 And I'm beginning at 197 which is at page 70 of2 your report. You discuss balancing that3 obligation to elimination polygyny with other4 rights including the right to privacy and family5 life, the right to freedom of religion and the6 right to enjoy one's culture. Can I ask you at7 this time if you can just discuss how foreign8 courts have dealt with this issue of balancing the9 obligation to eliminate of polygyny with other10 rights?11 A With regard to the right to family life that has12 been specifically address by the European13 Commission on Human Rights where the daughter of a

14 polygynous marriage was in England with her father15 and his second wife. She went before the European16 Commission on Human Rights after having exhausted17 all domestic remedies to try to get an exemption18 to the ban in immigration laws and policies in19 England to have her mother, who was the first wife20 of her father, join them in England, and the21 commission said that a violation of the right to22 respect for family life or a limitation on the23 right to respect for family life was justified in24 that instance.25 So her mother, the second wife -- the first26 wife of her father, was not allowed to join them27 in England28 Q Sorry, what was the name of that case?29 A That case was called Bibi v. The United Kingdom.30 It's discussed specifically at paragraph 204 on31 72.32 Q And have the foreign courts also dealt with this33 balance between freedom of religion and obligation34 to eliminate polygyny?35 A Yes, in terms of the balancing with the right to36 freedom of religion perhaps the most important37 case for Canada's purposes, because it applies the38 International Covenant on Civil and Political39 Rights, is Bhewa v. The Government of Mauritius.40 That is cited at paragraph 216. Bhewa is spelled

41 B-h-e-w-a. And in that case there was a42 prohibition of polygamy was sought to be43 reasonable limit on the freedom of religion and44 significantly they applied articles, particularly45 the most important article here was article 18 of46 the political covenant.47 So in that Canada is also a party to that




1 same covenant that's a very important case for2 Canada. There is also been -- this is the US3 cases primarily. There have been cases in dealing4 with convictions for polygamy in Utah and those5 convictions were upheld and not thought -- despite6 claims of free exercise of religion. Those cases7 are discussed -- they're discussed in the report8 at -- actually they're not discussed in this part9 of the report. They're discussed in another part10 of the report.11 The State of Utah v. Green where a bigamy12 conviction was upheld despite freedom of religious13 claims then Bronson v. Swenson which was a refusal

14 to grant a marriage license was okay despite free15 exercise claim. And then finally the State of16 Utah v. Holm where bigamy conviction was upheld17 against free exercise claims. And all of those18 cases have been decided in the last decade.19 Q And finally you discuss in your report the balance20 between -- or an argument against a restriction of21 prohibition of polygamy on the basis it infringes22 one right to enjoy one's culture. Can you discuss23 that briefly?24 A Right. There's been no specific case addressing25 that issue, but the committee on economic social26 and cultural rights has addressed it in its27 general recommendation 21, particularly28 paragraph 19, where limitations on the right to29 culture are permissible to protect human rights of30 women. And so that's probably the clearest31 articulation under international human rights law32 and that's discussed at paragraph 220.33 Q So Professor Cook, based on your international34 human rights and experience and experience in35 women's rights can you summarize for us this36 afternoon the trends that you've identified in37 international human rights law or in state38 practice with respect to polygyny.39 A There's a discernible trend in state practice to40 take all appropriate measures to eliminate

41 polygyny as a form of discrimination. You see42 this from the concluding observations on state43 reports. You see it in the decisions of domestic44 courts from a variety of different countries. So45 there is a discernible trend toward the46 prohibition of polygamy through appropriate47 measures.



40Rebecca Cook (for AG of Canada)In chief by Mr. ReimerCross-exam by Ms. Gaffar

1 Q And is there a discernible trend with respect to2 state practices when it comes to the practice of3 polygyny?4 A Yes, there is a discernible trend with regard --5 if you look at state practice through court6 decisions you see a discernible trend to prohibit7 or uphold bigamy convictions and polygyny8 convictions through -- against claims of freedom9 of religion.10 Q Professor Cook, are you aware of any case in the11 last 20 years or any situation in the last 20

12 years where a state has decriminalized the13 practice of polygyny or polygamy?14 A No, I am not aware and I did not come across any15 such cases in my research where a state has16 decriminalized polygyny.17 Q And based on your research would a state's18 decriminalization of polygamy be contrary to the19 trends that you've identified in international20 human rights law?21 A It would be contrary to the trend.22 MR. REIMER: I have no further questions, My Lord.23 THE COURT: Thank you. Who will be cross-examining so24 I know.25 MS. HERBST: We will, My Lord, and I have had a brief26 discussion with Mr. Reimer. I understand there27 are some friendly cross-examinations or affiliated28 cross-examinations which will precede ours.29 THE COURT: Who is going first then? Ms. Gaffar?30 MS. GAFFAR: Thank you, My Lord, that will be me.3132 CROSS-EXAMINATION BY MS. GAFFAR:33 Q Professor Cook, my name is Deanne Gaffar. I am34 counsel on behalf of West Coast LEAF, the Legal35 Education and Action Fund. I have just a few36 questions for you this afternoon.37 First, I wanted to turn you to your38 paragraphs 8 and 9 in your report. In the

39 introduction of your report you discuss the40 various human rights treaties applicable before41 the Court and you have listed the treaties and42 identified them for the court in your direct43 examination, and they are listed in paragraph 8;44 is that correct?45 A Yes, it is.46 Q I noticed -- what I did after I saw all of this is47 I went to the website to determine which countries



42Rebecca Cook (for AG of Canada)Cross-exam by Ms. Gaffar

1 to have come out in October of this -- of 2010?2 A Yes.3 Q All right. And I wish to ask you to turn to4 page 3, please, to paragraph 10. And what I would5 like to do -- this is sort of the first part of my6 question. It lays the foundation for what7 follows.8 At -- excuse me, at paragraph 10 in this9 general recommendation. It's under the heading10 "Nature and Scope of Obligations of State11 Parties." It indicates as follows:1213 State parties have an obligation not to cause

14 discrimination against women through acts or15 omissions. They are further obliged to react16 actively against discrimination against women17 regardless of whether such acts or omissions18 are perpetrated by the state or by private19 actors.2021 So I want to stop there and just clarify this22 thought. Certainly with regards to CEDAW, when23 you -- when a state party has acceded to or24 ratified the treaty we are talking about that25 state having a positive obligation to either26 eliminate discrimination or protect against27 discrimination both by state actors as well as28 private actors; is that correct?29 A Yes.30 Q And then I would like to continue on paragraph 10:3132 Discrimination can occur through the failure33 of states to take necessary legislative34 measures to ensure the full realization of35 women's rights, the failure to adopt national36 policies aimed at achieving equality between37 women and men and the failure to enforce38 relevant laws.3940 I am just going to stop there. If a state

41 party failed to enact some kind of prohibition42 against polygyny or polygamy would that constitute43 non-compliance with what is contained in44 paragraph 10?45 A Yes, it would be non-compliance of article 2 in46 combination with article 16 of the Women's47 Convention as elaborated through general




1 recommendation 28 paragraph 10.2 Q In CEDAW article 2 essentially focuses on general3 discrimination.4 A General obligations to eliminate discrimination5 without delay.6 Q And article 5, paragraph A deals with7 stereotyping?8 A Yes.9 Q Negative stereotyping. I would like to talk about10 what is contained within your paragraph 197 on11 page 70 of your report. Essentially in this12 paragraph you're pointing out that there is13 perhaps -- there are perhaps competing rights or a

14 balancing of rights that may have to occur when15 one considers the obligation to eliminate polygyny16 in the context of other rights such as freedom of17 religion, privacy rights, family rights, cultural18 rights, and you have given us examples of what has19 happened when judicial bodies or regulatory bodies20 have tried to balance those rights; is that21 correct?22 A Yes.23 Q You state at the bottom of paragraph 197:2425 The state practice and jurisprudence that26 have emerged under regional and international27 human rights treaties have answered these28 questions in the negative.2930 In other words, in the balancing that occurs31 between the obligation to eliminate polygyny and32 discrimination, the rights to privacy and family33 life, freedom of religion and the right to enjoy34 one's culture has not enjoyed success in a variety35 of forums throughout the world?36 A Yes. I qualify that by one point. I think it's37 correct to say the right to family life. I would38 keep the privacy element out of it.39 Q Okay. I'm just looking at the first sentence of40 your paragraph where you right to the refer to

41 private and family life?42 A Yes.43 Q But you're connecting private and family together?44 A Right. But it really is the right to family life45 that is at issue in most of the cases, not private46 and family life.47 Q When a state party ratifies or accedes to a treaty




1 are they entitled to enter a reservation to the2 treaty?3 A Yes, they are.4 Q Can you explain to His Lordship what constitutes a5 reservation? What that means if it is done?6 A According to paragraph -- I believe it's7 article 28 of the Women's Convention when they8 ratify --9 Q Where are you?10 A Okay. At tab 1, article 28 it says that:1112 The secretary general of the United Nations13 shall receive and circulate to all states the

14 text of reservations made by states at the15 time of ratification or accession. A16 ratification incompatible with the object and17 purpose of the present convention shall not18 be permitted.1920 The implication being that a reservation that's21 compatible with the object and purpose will be22 permitted.23 Q But to be more precise, what is a reservation?24 What happens or what is the implication if someone25 has entered a reservation?26 A When you enter a reservation you reserve your27 obligation to implement a certain aspect of the28 treaty. You reserve your obligation, say, to29 implement a particular article, say article 1030 with regard to women's education, and you do it31 primarily to bring your laws, policies practices32 into compliance with the convention and then you33 withdraw the reservation.34 Q In other words, is the state party saying this35 article will not apply to us until we have raised36 ourselves to a level of conformity?37 A Yes.38 Q Okay.39 A But there are reservations that are not40 permissible because they object -- because they

41 reserve obligations that are so part and parcel of42 the convention that they would not be permitted,43 such, as for example, there are quite a few44 reservations to article 2 and I don't think the45 Women's Committee would think those are compatible46 or permissible under article 28(2).47 Q If a state party wanted to signal that it




1 intended, for example, one of its particular2 constitutional rights such as freedom of religion3 to take precedence over article 2 or article 5A of4 CEDAW would the appropriate protocol be to enter a5 reservation?6 A The appropriate approach would be to enter a7 reservation to articles 2, 5A and article 16 with8 regard to equality in marriage and family life,9 yes. That would be the appropriate approach.10 Q Has Canada entered a reservation to CEDAW?11 A No, Canada has not entered my reservations to the12 Women's Convention. In fact, one can say it has13 taken a leading role in implementing CEDAW. It's

14 very conscientious about reporting every four15 years.16 Q May I ask you to turn to paragraph 16 of your17 report, please.18 A M'mm-hmm.19 Q In paragraph 16 you summarize conclusions with20 regards to inherent wrongs and associated harms of21 polygyny, and in sub-paragraph A you used the term22 the "patriarchal structuring of family life that23 enables men to marry multiple wives but not vice24 versa offends women's dignity and thus is25 inherently wrong." When you use the term26 "patriarchal structuring," and you do so a number27 of times throughout your report, can you explain28 more precisely what that means so that the court29 understands how to appropriately use that in your30 report?31 A The term "patriarchal structuring of life" means32 the man, the patriarch, is privileged in family33 life, is privileged with respect to rights and34 duties. It means that the man is superior and the35 woman is inferior in family life.36 Q In a sort of related question you used the terms,37 and of course the treaties use the terms,38 "stereotyping," negative gender stereotyping,39 sexual stereotyping, that sort of term. From your40 work in reviewing the state reports that were

41 submitted to the committees with regards to the42 treaties and from all of the work that you've done43 are you able to give us more precise examples as44 to what the committees, particularly with CEDAW,45 consider to be negative gender stereotypes?46 A Okay, the Women's Convention does not use the term47 "negative gender stereotypes" but it is




1 elaborated -- the meaning of that -- article 5A is2 elaborated in general recommendation 25 where it3 outlines the object and purpose of the Women's4 Convention to address direct discrimination,5 indirect discrimination and structural6 discrimination.7 In article 5A they -- the wording is used,8 and I can read it precisely. The wording -- again9 at tab 1, article 5A that:1011 State parties shall take all appropriate

12 measures to modify the social and cultural13 patterns of conduct of men and women.1415 And that could be summarized as referring to16 the social practices of gender, how men and women17 interact and relate to each other. And they are18 obligated to modify those social and cultural19 practices of gender, cultural practices of conduct20 of men and women, with a view to eliminating21 prejudices and other practices that are based upon22 the inferiority or superiority of either of the23 sexes.24 So where you have a social practice of25 gender, a cultural pattern of conduct that puts26 women in an inferior position in a variety of27 different contexts -- it could be family life, it28 could be education, it could be access to justice,29 it could be employment -- so where women are30 treated in an inferior way through the social31 practice of gender or they're treated according to32 stereotype roles, in other words, predetermined or33 prejudged roles, they are obligated to change34 those practices.35 Now, obviously with polygyny we're dealing in36 the context of family life, but that article 5A37 relates across all sectors.38 Q Earlier today you also testified about associated

39 harms and in particular material harms that occur40 in an urban setting -- no cash in an urban setting41 and you need more cash in an urban setting. But I42 wondered if you could talk to us about your43 observations from the report submitted by state44 parties to the treaties and in particular CEDAW45 about concerns that state parties were expressing46 and that the committees were expressing about47 harms in a rural context, and to assist you I can




1 direct you to paragraph 50 of your report.2 At paragraph 50 you write:34 A study of polygyny and wife abuse amongst5 American sunni Muslim women echos this theme6 of disempowerment. One study found that7 wives felt disempowered because of their8 inability to prevent their husbands from9 taking other wives. The significance of10 marriage within their Muslim communities and11 the associated need to keep their family12 together in turn lead to unhappiness and13 vulnerability to abuse. At least one state

14 has reported on the emotional and15 psychological impact that coercive community16 norms supporting polygyny have on women and17 girls.1819 And you cite -- you have as a footnote there 6020 and you go down and cite down at 60 a Report to21 CEDAW that talks about girls and in a rural22 environment. Can you comment or expand upon23 associated harm with regards to the rural context24 and polygyny.25 A Certainly there is an associated harm of26 disempowerment in rural communities that might be27 exacerbated because of the feelings of isolation.28 And this particular state report is looking at29 that because women and girls have no or little30 means of expressing their aspirations and feelings31 that are different from the customary norm,32 traditions for their ethnic group. In other words33 they feel like they have to meet those34 stereotypical expectations of girls, and where35 they do not meet those stereotypical expectations36 they tended to be shunned by the community.37 Q Have the state parties expressed concerns about38 children, boys and girls, who are exposed to39 gender stereotypes as they are growing up in the40 context of polygyny and how that affects them?

41 A Yes, although right off the top of my head I can't42 think of a particular state party, but that43 concern has been elaborated in reports and in44 concluding observations. Both, I think, in the45 Women's Committee and in the Committee on the46 Rights of the Child.47 Q Have you observed a theme emerging in the reports



48Rebecca Cook (for AG of Canada)Cross-exam by Ms. GaffarCross-exam by Ms. Trask

1 and in the recommendations and general comments2 about any negative or detrimental effects on3 children exposed to gender stereotypes?4 A The Committee on the Rights of the Child, and I5 don't know the Committee on the Rights of the6 Child as well as I know the Women's Committee, but7 it has not yet really addressed the issue of8 negative stereotyping on children. I think that9 theme has been sounded by the Women's Committee.10 MS. GAFFAR: My Lord, I believe I have concluded my11 questions if I may have just a moment.

12 THE COURT: Thank you, Ms. Gaffar.13 MS. GAFFAR: Thank you, Chief Justice.14 THE COURT: Thank you. Ms. Trask.1516 CROSS-EXAMINATION BY MS. TRASK:17 Q Good afternoon, Professor Cook. My name is Robin18 Trask, I am counsel for the British Columbia19 Teachers Federation, which is the union, the20 society that represents public school teachers in21 the province and other associated professionals,22 so I have some questions that relate to children.23 And I only have a few questions for you. I'm24 going to take you briefly to your report and also25 to the Convention on the Rights of the Child and I26 don't have white binder so I'm not sure what tab27 that is at.28 A Tab 9.29 Q Tab 9. Okay. Thank you. And I have extra copies30 of the convention for others who might not have31 the binder.32 If I could take you briefly first to your33 report. At paragraphs 61 through 67 you review34 the harms to children of polygamous unions. And35 I'm just going to summarize what I believe I've36 seen here and maybe you can tell me if I'm37 correct. And you've identified the harmful gender38 stereotypes, exclusion of boys, early marriage for

39 girls. At paragraph 66 you also refer to lower40 levels of socioeconomic status, reduced academic41 achievement and self esteem as well as higher42 levels of reported family dysfunction and drug43 use, and you also refer to neglect by fathers. At44 paragraph 194 of your report you refer to article45 24(3) of the convention and the obligation to take46 all effective and appropriate measures with a view47 to abolishing traditional practices prejudicial to



49Rebecca Cook (for AG of Canada)Cross-exam by Ms. Trask

1 the health of children.2 So keeping in mind those harms I thought that3 there may be a few other provisions in the4 convention that would also be engaged, and I would5 like your views on that. Particularly -- if we6 can turn to the convention now -- article 19,7 which states that state parties shall take all8 appropriate legislative, administrative, social9 and educational measures to protect the child from10 all forms of physical or mental violence, injury11 or abuse, neglect or negligent treatment,12 maltreatment or exploitation including sexual13 abuse while in the care of parents, legal

14 guardians or any other person who has the care of15 the child. And do you have any views about16 whether any of those harms would be in conflict17 with this provision of the convention?18 A I think they definitely would be in conflict with19 that provision 19(1).20 Q And is there any you think in particular would be21 engaged?22 A Well, certainly the casting out of excess boys23 would be a form of violence against boys and be --24 offend this provision. The --25 Q And this provision also makes reference to sexual26 abuse, which article 34 and 36 also refer to27 sexual exploitation and abuse. And would underage28 marriage be in conflict with those provisions?29 A Yes.30 Q Article 28 and 29 relate to the rights of children31 to education and in particular article 29B states32 that:3334 The state parties agree that the education of35 the child shall be directed to the36 development of respect for human rights and37 fundamental freedoms and for the principles38 enshrined in the charter of the United39 Nations40

41 And further down D says that:4243 The education of the child shall also be44 directed to the preparation of the child for45 a responsible life in a free society in the46 spirit of understanding, peace, tolerance,47 equality of the sexes and friendship among



50Rebecca Cook (for AG of Canada)Cross-exam by Ms. Trask

1 all people, ethnic nationalities or religious2 groups and persons of indigenous origin.34 And I was wondering if you could provide us5 with your views on how those may interact with the6 harms that you've identified, particularly the7 gender stereotyping?8 A Certainly polygynous unions stereotype women into9 inferior roles because they don't recognize them10 as equal, and their children internalise these11 stereotypes about how their mothers are treated in12 inferior ways and they internalise them in their13 own self perceptions and adopt those perceptions

14 and begin to follow them in their behaviours in15 their family life, school and community. So it16 would definitely offend that article you just read17 out.18 Q The last area I would like to ask you about is --19 you spoke earlier about the language of state's20 obligations to take all appropriate measures in21 relation to CEDAW, and I believe that what you22 said was that appropriate measures means that23 states have to address equality, rights of women24 and underlying stereotypes of women in polygynous25 unions.26 The same language about "all appropriate27 measures" is also present in the children's rights28 convention and that's in article 2 and article 4?29 A M'mm-hmm.30 Q And particularly in article 4 it says that:3132 State parties shall undertake all appropriate33 legislation, administration and other34 measures for the implementation of the rights35 recognized in the present convention.3637 And would your comments that you made about38 all appropriate measures in regard to CEDAW, would39 that apply here as well? I was wondering if you40 could elaborate on that.

41 A Yes, the -- in general recommendation 28 of the42 Women's Convention on state obligations with43 regard to appropriate measures is a general matter44 that would refer to the same -- same terminology45 in the children's convention. So yes, states46 are -- have to take all appropriate measures with47 regard to children in polygynous unions and be



52Rebecca Cook (for AG of Canada)Cross-exam by Ms. Herbst

1 Q All right. And the CEDAW committee is made up of2 about 22 people presently?3 A Yes. I think it's actually 23, but yes. Give or4 take.5 Q And you would agree with me all about one of those6 are women?7 A It varies. I think there have been -- on the8 Women's Committee I think there's been up to three9 men as well. Currently I think there's one man,10 but I haven't checked.11 Q All right. So the vast proportion are women?12 A Indeed.13 Q All right. And you speak in your report and in

14 paragraph 9 you refer to four of those treaty15 bodies and they're the four treaty bodies that16 correspond to the four treaties, of course, that17 you deal with, the Human Rights Committee, the18 Committee on Economic, Social and Cultural Rights,19 the Committee on the Rights of the Child and of20 course the CEDAW committee that we have just dealt21 with. And those are the four treaty bodies you22 deal with in your report?23 A Yes, that's right.24 Q All right. And you'd agree with me, Professor25 Cook, that none of those treaty bodies has26 examined the issue of polygamy or polygyny27 comprehensively?28 A It depends on what you mean by "comprehensively."29 They have not developed a general recommendation30 on polygyny if that's what you mean, but certainly31 as the issue of polygyny arises in state reports32 they deal with it comprehensively.33 Q Okay. And you're on the board of directors of the34 Centre for Reproductive Rights?35 A Correct.36 Q And you cite a report from that centre the --37 something called "Bringing Rights to Bear: An38 analysis of the work of UN treaty monitoring39 bodies on reproductive and sexual rights" in your40 report?

41 A M'mm-hmm.42 Q And it has a very helpful compilation of the work43 of those treaty bodies on this issue and other44 issues pertaining to reproductive and sexual45 rights. You'd agree that's a helpful one?46 A Yes.47 Q And hence you've cited it. It's a well researched




1 source obviously?2 A M'mm-hmm. Yes.3 Q Okay. And I would like to pass over and hand up4 an excerpt from the most recent of those reports,5 and you've referred to I believe two versions of6 the report "Bringing Rights to Bear" in your7 report, the 2002 and the 2008 edition. And you'll8 recognize this I think, Professor Cook, as the9 second of those, the 2008 report. You can see at10 the bottom of the second of the pages here?11 A M'mm-hmm.12 Q And so you'll agree that's an excerpt from the13 report that -- one of the reports from this body

14 you cite in your report?15 A Yes, these are subsequent briefing papers.16 Q Okay.17 A That are meant to update the original report.18 Q Okay. And if we can turn to the second page of19 that then, the summary assessment of that briefing20 paper. And turn to the top of that page first of21 all. It says:2223 While the committees' work demonstrates24 concern for issues of women's rights within25 marriage, child-enforced marriage, polygamy26 and divorce, the committees have not always27 addressed these issues systematically.2829 And then in the third paragraph:3031 Polygamy has been discussed frequently in the32 concluding observations of the CEDAW33 committee although much less frequently by34 the Committee on the Rights of the Child, the35 Human Rights Committee and the Committee on36 Economic, Social and Cultural Rights.37 Neither the Committee on the Elimination of38 Racial Discrimination nor the Committee39 Against Torture has broached the issue at40 all. Although the committees that have

41 discussed polygamy have condemned the42 practice the issue has not been examined43 comprehensively. None of the committees have44 discussed the financial and emotional45 hardships associated with the practice.4647 Would you agree with that?




1 A Well, I haven't examined the Committee Against2 Torture and I haven't examined the Committee on3 the Elimination of Racial Discrimination so I4 really can't answer that question.5 Q Okay.6 A But I think -- well, yeah.7 Q All right. But certainly there's no report from8 any of these committees or no concluding9 observations or no recommendations or general10 comments that's been devoted exclusively to the11 issue of polygyny?12 A There is been no general recommendations or13 general comments that have devoted specifically to

14 the issue of polygyny, say, for example the way15 there's been a general recommendation from the16 Women's Committee dealing with equality in family17 life.18 Q Right.19 A So they have not dealt in a comprehensive way with20 all elements of polygyny.21 Q And there's no general recommendation or general22 comment that I can find in these committees that23 is entitled "polygyny" for example?24 A Correct.25 Q Okay. And two of the committees, the Committee on26 Economic, Social and Cultural Rights and the27 Committee on the Rights of the Child haven't28 addressed polygyny in their general comments or29 recommendations at all; is that correct?30 A Right. They have dealt with them in concluding31 observations on reports of state parties.32 Q Yes.33 A But there's been no general recommendation or34 general comment from those two committees35 specifically addressing polygyny.36 Q Right. Okay. And you say in your report, and I37 take this to be the case, that international38 statements of the kind that are found on other39 human rights issues aren't found in the area of40 polygyny?

41 A Sorry, state that again?42 Q Well, in paragraph -- perhaps we can turn to43 paragraph 69 of your report and that's on page 23.44 And if you can turn just to the last sentence of45 that paragraph.4647 Because polygyny is not considered a




1 significant diplomatic issue international2 statements of the kind that exist for other3 human rights issues are not evident in this4 area.56 That's an accurate statement?7 A Right. What is meant by that is that, for8 example, right now a huge diplomatic activity9 would be with regard to global warming.10 Q Right.11 A But women's rights are certainly not akin to that12 or international financial crises.13 Q All right.

14 A So women's rights generally are not a huge15 diplomatic issue nor is polygyny.16 Q All right.17 A So we don't get a lot of diplomatic traffic on18 that issue.19 Q Certainly. And so even though for other human20 rights issues polygyny has a lesser amount of21 international statements that it attracts, just22 given the wording of your statement here?23 A Correct.24 Q Okay. Now, there's been no statement at all from25 any of the treaty bodies in this area -- any of26 the international treaty bodies that you reference27 on the issue of polyamory.28 A Correct.29 Q And in your report you don't deal with polyamory,30 other than at that distinguish it from polygyny31 which is what you deal with?32 A Correct.33 Q Okay. Country reports to international treaty34 bodies, which you discuss of course in your35 report, are intended to detail -- and I'm quoting36 here from one part of your report -- "to detail37 the legislative, judicial, administrative and38 other measures that states parties have taken to39 give effect to the treaty"?40 A What paragraph is that?

41 Q Sure. It's paragraph 236 and that's on page 82.42 And it's the first line. You say that:4344 Country reports are meant to detail the45 legislative, judicial, administrative and46 other measures states parties have taken to47 give effect to the treaty.




1 A Yeah.2 Q Okay. And that's -- that's an accurate statement?3 A M'mm-hmm.4 Q Okay. So today in your direct examination you've5 referred the court to some reports that have been6 filed by various countries, Togo and Nepal and7 Nigeria. None of the references in your report,8 of course, include a report from Canada on its9 obligations with respect to polygamy?10 A No, I checked the last report -- I mean the11 concluding observations that were filed on the12 report of Canada in 2007 and there was no13 concluding observation on the report from Canada

14 with respect to polygamy.15 Q Right. That's correct. Now, turning back to16 page 1 of your report, going back to the beginning17 and paragraph 4. And you've detailed this in part18 in your direct testimony as well. One of the19 issues that you addressed in your report is the20 second of the sub-paragraphs here, state practice21 on polygamy in comparative western democracies?22 A M'mm-hmm.23 Q So among the comparative western democracies you24 identify or were identified for you were the25 United Kingdom, France, Australia and the United26 States?27 A Correct.28 Q And by "comparative western democracy" you mean a29 country that you see as comparable in government30 and culture to Canada?31 A Yes.32 Q All right. And so each of the countries that33 you've listed here fall within that criterion.34 It's a country that you would consider comparable35 culturally and in government to Canada?36 A M'mm-hmm.37 Q Now, in terms of state practice obviously there38 are various kinds of state practice that you've39 examined in your report. One of the things that40 looking at state practice involves includes

41 looking at national legislation?42 A M'mm-hmm.43 Q That's correct?44 A Correct.45 Q All right. And so for example, and if we can turn46 to page 32 of your report, you look at the47 national legislation in Canada?




1 A M'mm-hmm.2 Q And the legislation specifically on the issue that3 we're dealing with here, polygyny or polygamy, and4 you set out the Criminal Code prohibitions that5 relate to that. And there's section 290 which is6 the bigamy prohibition and section 293, the7 polygamy section as well?8 A M'mm-hmm. Yes.9 Q All right. And so now the offence of bigamy as10 you've set out here requires going through a form11 of marriage; that's correct?12 A Correct, yes.13 Q And the offence in section 293 doesn't contain

14 that language?15 A Correct.16 Q And so the offence in section 293 presumably17 catches some relationships that section 29318 doesn't?19 A Correct.20 Q All right. So you've looked of course as well at21 national legislation in other countries in your22 report and one of them is the United Kingdom, and23 that I think, and we can turn there, starts at24 paragraph 88. And that is on page 31 turning back25 one page. And in paragraph 88 you say -- or you26 start your discussion.27 Now, England has only one section in its28 criminal law that deals with this issue and you've29 identified it at footnote 38 I think?30 A Correct.31 Q And that's section 57 of the offences against the32 Person Act 1861. And you have quoted wording33 here -- I'm just going to read it out loud but I34 take it you agree that's an accurate reproduction35 of it:3637 Whosoever being married shall marry any other38 person during the life of the former husband39 or wife, whether the second marriage shall40 have taken place in England or Ireland or

41 elsewhere, shall be guilty of felony and42 being convicted thereof shall be liable to be43 kept in penal servitude for any term not44 exceeding seven years.4546 And that's the current English prohibition of47 bigamy?




1 A M'mm-hmm.2 Q That's correct?3 A Correct, m'mm-hmm.4 Q Okay. Now, you say in your report in paragraph 885 that polygamy is prohibited as the crime of bigamy6 and for that you turn to a case called R. v.7 Taylor and that's in the second sentence in your8 paragraph, where you say that the court of9 criminal appeal made clear that the bigamy10 provision is intended to cover polygamous unions?11 A Correct.12 Q And now, what you mean by that is that the court13 said that the bigamy provision wasn't limited to

14 prohibiting a second marriage, but also a third,15 fourth, fifth --16 A Right.17 Q -- marriage?18 A Yes.19 Q And the Taylor case itself doesn't address the20 situation, for example, of a group of people21 living together?22 A I would have to recollect my memory but I think23 that's a correct statement of Taylor.24 Q Okay. And it doesn't deal with a situation where25 there is a union entered into other than through a26 ceremony of marriage?27 A Through a legal ceremony or on solemnized28 marriage.29 Q A ceremony of marriage is all that I believe it30 discusses. It doesn't draw a distinction31 certainly?32 A Okay.33 Q Would you agree with that?34 A Yes.35 Q Now, in the footnote for the Taylor case you also36 refer to a book called Polygamy, Bigamy and Human37 Rights Law and you refer to that book for a38 discussion of the English bigamy provision?39 A M'mm-hmm.40 Q And what I would like to do hand up and out a copy

41 of that text. And Professor Cook, it's a printout42 because it's a text available on the internet, but43 you'll see and I think you will be able to44 identify it as the same book that you referred to.45 If you turn to the second page of it you will see46 the copyright from 2001, Xlibris, as you have47 described in your footnote. And you're satisfied




1 that's the text you refer to?2 A Yes, yes, m'mm-hmm.3 Q Okay. And if you turn to page 31 and 32 which is4 the discussion that you refer the reader to, and5 the bottom of page 31, that's a discussion of the6 Taylor case of course?7 A M'mm-hmm.8 Q And the quote that you've set out in your report9 is found there as well. And at the top of the10 next page, page 32, Chapman, the author, says:1112 The case helped to establish in the Act of13 1861 second marriage meant the same

14 throughout the section and includes15 subsequent marriages. Otherwise, once a man16 became a bigamist he could continue to marry17 without offending because his third marriage18 or fourth marriage would not be his second19 marriage.2021 And of course that's what the case refers to?22 A M'mm-hmm.23 Q Right. And now continuing in Chapman's text I24 would like to go a bit further, to page 95?25 THE COURT: Page?26 MS. HERBST: 95.27 Q And that's the conclusion section of Chapman's28 text. And I would like to go to the second29 paragraph in that discussion and what Chapman says30 is:3132 Nor is it the case that polygamists breach33 the country's bigamy laws. It is clear that34 if they don't use the legal formalities that35 normally produce legal marriage then they36 commit no offence.3738 You would agree that's an accurate statement?39 And he continues on.40 THE COURT: Sorry -- you --

41 MS. HERBST: Sorry.42 THE WITNESS: No, I want to reread the provision.43 MR. JONES: My Lord, perhaps I could use this and44 register if not an objection a concern. The45 witness is qualified in international law. She is46 now being asked a detailed or a nuanced question47 with respect to the laws of England, and I would




1 THE CLERK: Exhibit 121 My Lord.23 EXHIBIT 121: 2 page p/c excerpt titled "Bringing4 Rights to Bear"; dated October 2008 at page 256 MS. HERBST: As similarly for the Chapman text, the7 cerlox-bound document that I handed up, which I8 ask to be marked as well.9 THE COURT: Exhibit 122.10 THE CLERK: Exhibit 122 My Lord.1112 EXHIBIT 122: 1 clear-covered cerlox brief titled13 "Polygamy, Bigamy and Human Rights Law" by Samuel

14 Chapman; copyright 2001 on page 2; double sided15 p/c1617 MS. HERBST:18 Q Professor Cook, before the break we were at19 page 95 of Chapman's text where he says:2021 Nor is it the case that polygamists breach22 the country's bigamy laws. It is clear that23 if they don't use the legal formalities that24 normally produce legal marriage then they25 commit no offence. It's also clear that if26 they do go through those formalities but27 already have a potentially polygamous28 marriage, that they still do not commit an29 offence. In a very real sense the law has30 differentiated between bigamy, an offence31 which appears to require deception, and the32 practice of polygamy to the extent that many33 polygamists could not be guilty of the34 offence of bigamy even if they tried.3536 And you will agree with me at least that's37 Chapman's -- that's the conclusion that Chapman38 sets out here?39 A That's the conclusion that Chapman sets out in40 this document, but I'm not qualified in English

41 law or to interpret English law.42 Q All right. So you've not -- you will agree then43 that the text to which you refer your readers for44 discussion of the bigamy provision reaches this45 conclusion?46 A Yes.47 Q All right. And if we can turn a few pages on at




1 page 101 of Chapman's text. The act of -- what he2 has called the "Act of 1604," and before I turn to3 this particularly, in your testimony and in your4 report I believe you said that until recently or5 traditionally the prohibitions that you describe6 in your report, the criminal prohibitions whether7 polygamy or bigamy, were aimed at two things,8 protecting a monogamous definition of marriage or9 preventing fraud against persons or the state?10 A Yes.11 Q All right. And I believe you said this morning12 that that was up to about a decade ago those were13 the governing -- the main aims of such

14 legislation?15 A M'mm-hmm.16 Q That's correct?17 A Yes.18 Q All right. And so in light of your comments about19 perhaps your depth of knowledge of English law I'm20 not sure you will be able to answer this question,21 but would you agree with me that this Act of 160422 is a predecessor section to section 57 of the23 offences against the Person Act which you have24 described as the current prohibition?25 A I am not an expert in English law so I really26 don't want to answer that question. There are27 other people much more qualified than I am.28 Q Okay. So your study of state practice in England29 in the area of national legislation hasn't been in30 depth?31 A It's only as it's viewed through the committees of32 the human rights treaty bodies.33 Q Okay. Now, Australia, of course, is another one34 of the comparative western democracies that you35 referred to in your report?36 A Correct. Yes.37 Q That's right. And I think we may have covered38 this before, but you will agree with me then that39 it's a country with legislation, or government and40 culture if I can put it that way -- we'll keep

41 legislation aside for the moment -- comparable to42 Canada?43 A Yes.44 Q All right. And if we can turn to page 28 of your45 report. And in particular paragraph 81. This is46 part of your discussion of legislation in47 Australia?




1 A M'mm-hmm.2 Q All right. And you say:34 It is an offence in Australia for a person5 who is already married to purport to marry6 another (bigamy).78 And there's a footnote there, 121, and the9 footnote refers to Marriage Act 1961 with an10 abbreviation which I take to be "Commonwealth."11 Would you agree with me that's the federal12 statute?13 A M'mm-hmm, m'mm-hmm.

14 Q Yes.15 A Yes.16 Q All right. And what I would like to pass to you17 and pass up is a copy of that section, or what I18 take you'll agree to be a copy of that section,19 Professor Cook, and you will see that's headed20 Marriage Act or "Common Law Consolidated Acts21 Marriage Act 1961, section 94"?22 A Yes.23 Q And so I take it this is the section that you're24 referring to in your report for Australian25 legislation?26 A Yes.27 Q Okay. And if we turn to that section it's headed28 "Bigamy" and subsection (1) says:2930 A person who is married shall not go through31 a form or ceremony of marriage with any32 person.3334 And then down below, if you continue down the page35 in subsection (4):3637 A person shall not go through a form or38 ceremony of marriage with a person who is39 married knowing or having reasonable grounds40 to believe that the latter person is married.

41 A Correct.42 Q That's correct? So that in your understanding is43 the Australian legislation that deals with this44 issue?45 A Correct.46 Q Now, it appears then from this that like England47 there's just one section that deals with the issue




1 rather than two, unlike in Canada?2 A M'mm-hmm.3 Q All right. That's correct?4 A Correct, yes.5 Q Okay. Now, in your report as well at6 paragraphs 81 to 83 and in your direct testimony7 this morning you refer to a report of the Law8 Reform Commission of Australia?9 A Correct.10 Q I think in your testimony this morning you11 described it as a very important report?12 A It's -- the Law Reform Commission report on13 Multiculturalism and the Law.

14 Q That's right.15 A And I refer to it in terms of it just -- not16 recognizing the legal status of polygamy would17 offend, as you can read in paragraph 83, and18 that's why I was referring to that report, not19 because of any detailed analysis of the particular20 legal provision but just how it dealt with an21 attempt to recognize polygamy.22 Q Okay. Okay. Fair enough. And before we go too23 far from the provision I have again omitted to ask24 that section 94 of the Marriage Act be marked as25 an exhibit, please.26 THE COURT: 123, thank you.27 THE CLERK: Exhibit 123, My Lord.2829 EXHIBIT 123: 2 page p/c document titled "Marriage30 Act 1961 - Sect 94" on Commonwealth Consolidated31 Acts letterhead, dated 23/12/2010 at bottom right32 corner3334 MS. HERBST:35 Q What I would like to hand up is an excerpt of the36 Australian Law Reform Commission Report on37 Multiculturalism and the Law.38 So you will see, Professor Cook, what I have39 done is I have the first page and then the40 second -- or a title page and a second page there

41 with a copyright, and then I've reproduced a42 chapter called "Marriage and Similar43 Relationships"?44 A M'mm-hmm.45 Q And I take it you will recognize this as an46 excerpt from the report that you refer to in your47 report?




1 A Yes.2 Q All right. Now, just to be clear, in your -- and3 I think this is fairly represented in your report,4 but just to be clear what the Australian Law5 Reform Commission was considering in the portion6 of its report that you describe is the premise of7 whether or not polygamist unions should receive8 formal legal recognition?9 A M'mm-hmm.10 Q It wasn't considering -- and that's what it11 rejected, that they receive formal legal12 recognition?13 A Correct.

14 Q All right. It wasn't rejecting in its report15 that -- a proposition like that before this court16 that polygamous unions be decriminalized?17 A No. No.18 Q No, it wasn't dealing with that issue. It wasn't?19 A Correct.20 Q All right. Now, in fact, what the commission did21 go on to suggest, Professor Cook, is that there be22 consideration given to decriminalizing bigamy;23 would you agree with that? And we can turn24 certainly in the report to that.25 And if you turn to page 94. Anyway, perhaps26 let's start with 93 which is one of the pages that27 you refer to in your report. It starts with28 "polygamy," then it continues to 94. There's a29 new subheading. So at the end of -- at the end of30 that section on polygamy it says in 5.10:3132 The commission does not recommend that the33 law should be changed to allow a polygamous34 marriage contracted in Australia to be35 recognized as valid marriage.3637 And then it continues on to bigamy, new heading,38 if you see that?39 A Yes. M'mm-hmm.40 Q And then it says in 5.11, "bigamy is a criminal

41 offence." Then just lower down on the page,42 fourth line from the bottom:4344 The critical act is going through a form or45 ceremony of marriage which purported to be a46 ceremony of marriage under Australia law.47




1 And then if you turn over the page what it2 says is:34 It seems doubtful whether the harm done to5 the other party, especially in cases where6 that party has not been deceived, is such as7 to require as additional criminal sanction.8 It can be argued that the offence of bigamy9 itself is therefore no longer necessary to10 deter the conduct against which it is11 directed. It creates anomalies. Although12 the marriage is not valid the parties may be13 in a de facto relationship and certain

14 consequences may follow from this. The15 commission recommends that further16 consideration should be given to the question17 whether the policy that a person may not18 marry legally while already married should be19 enforced by a criminal offence.20 A Correct, that's what it reads.21 Q All right?22 THE COURT: Did you want it to mark that?23 MS. HERBST: Yes, please.24 THE CLERK: Exhibit 124, My Lord.25 THE COURT: Thank you.2627 EXHIBIT 124: 13 page double side p/c report28 titled "Multiculturalism and the Law"; dated as at29 1 March 1992 on 2nd page3031 MS. HERBST:32 Q Now, Professor Cook, France is another of the33 western democracies that you deal with in your34 report?35 A M'mm-hmm.36 Q And it's another democracy that you would consider37 to be comparable to Canada?38 A Correct.39 Q Right. And you refer to the legislation of France40 and some other countries in paragraph 84 of your

41 report and that's at page 29?42 A M'mm-hmm.43 Q And you refer -- so you refer in particular to44 France, Belgium, Luxembourg and then Switzerland.45 I take it you'd also consider Belgium, Luxembourg46 and Switzerland to be western democracies47 comparable to Canada?




1 A Yes.2 Q And in your reference here at paragraph 84 you3 again refer to just one section per country; is4 that correct? There's just the one prohibition5 that each country has?6 A Correct.7 Q Okay. And in your report you refer in -- you've8 got a footnote at the end of this paragraph 130 to9 a site from the University of Sherbrooke and I10 would just like to hand up as well.11 And Professor Cook, I -- you very helpfully12 identified the title of the web page that you13 referenced and its sight. Would you agree that's

14 the same site that you visited for discussion of15 the legislation of these countries?16 A I do agree.17 MS. HERBST: Okay. And at this time before I forget if18 I may have that marked as an exhibit as well?19 THE COURT: 125.20 THE CLERK: Exhibit 125, My Lord.21 MS. HERBST: Thank you.2223 EXHIBIT 125: 4 page p/c document titled24 "Nationalité, mariage et vie familiale" from25 Université de Sherbrooke dated 23/12/2010 at26 bottom right corner.2728 MS. HERBST:29 Q If we could turn three pages into that document,30 Professor Cook, and there's the listings for the31 legislation from the various countries that you32 discuss. And there is France and Belgium on33 page 3 here. And what it says is -- and I34 apologize because my French is much poorer than35 Mr. Reimer's Spanish, but it says is "On ne peut36 contracter un second mariage avant la dissolution37 du premier." And I note Professor Cook in your CV38 you say that you're fluent in French, so as a39 rough translation could we agree what this says is40 one can't enter into a second marriage before

41 dissolution of the first?42 A Yes.43 Q All right. And the Swiss provision at the bottom44 of the page is even more challenging. What it45 says is, "Toute personne qui veut se remarier doit46 établir que son précédent mariage a été annulé ou47 dissous." And Professor Cook, could we agree that




1 at least a rough translation is that everyone who2 wants to remarry must establish that his or her3 prior marriage has been annulled or dissolved?4 A Yes.5 Q All right. And I take it given your reference to6 this site you consider it a reliable one for7 describing other countries' legislation?8 A Yes.9 Q All right. Now, if we turn to the next page it10 also has wording for Luxembourg which is the same11 I believe as the wording for France and Belgium.12 A M'mm-hmm.13 Q And then it continues on to say at the bottom of

14 that in smaller print, in French, "La polygamie15 est reconnue dans une cinquantaine de pays" and16 then it lists out some examples of the countries17 it's recognized in. Would you, Professor Cook,18 just based on that and -- that what it's saying is19 polygamy is recognized in about 50 countries?20 A Yes.21 Q Okay. Now, you've described in your report that22 among the other sources for determining whether --23 or a source perhaps attributes too much -- too24 much technical meaning to this, but another place25 one look force determining whether a practice is26 contrary to international law or international27 customary law is the degree to which states have28 prosecuted an offence?29 A M'mm-hmm.30 Q That's correct?31 A Yes.32 Q And you're aware that in Canada apart from some33 charges against Mr. Blackmore and Mr. Oler34 recently there doesn't seem to be a prosecution of35 polygamy since 1937?36 A Yes.37 Q So we can attribute some significance to that in38 terms of the status of the practice under39 international law?40 A What do you mean, significance under international

41 law?42 Q Well, you have said that the degree to which43 states have prosecuted an offence is among the44 places to turn for determining whether a practice45 is contrary to international customary law?46 A It's definitely one of the places. How47 determinative it is is an open question.




1 Q Okay. Okay. It's a place where -- it's a kind of2 evidence --3 A It's one of the considerations.4 Q All right. All right. Now, if we can turn back5 in your report to paragraph 52 this time and it's6 at page 16. And this goes back to a discussion7 that I think -- well, you had with Mr. Reimer8 during your direct testimony. You refer to a9 report here, a 2002 report, in the third line10 called "Cultural practices in the family that are11 violent towards women" from the UN special12 rapporteur on violence against women?13 A Sorry, what paragraph are you reading?

14 Q I'm sorry, 52.15 A 52.16 Q Yes. Sorry. And that's on page 16.17 A Okay. I follow.18 Q Okay. And in your testimony this morning you19 noted as it says here that -- the special20 rapporteur noted that:2122 There are several forms of threat that are23 used to ensure women stay obedient within the24 marriage for example the threat of the25 husband taking another wife...26 A M'mm-hmm.27 Q That's correct. And you then have three dots at28 the end of that sentence?29 A M'mm-hmm.30 Q Would you agree with me that the other example31 that the special rapporteur gives is divorce as a32 threat that is used to ensure that women stay33 obedient within the marriage? And I'm certainly34 happy to show you the report if you like.35 A No. Well, if that's what you say it says I can36 accept that. Yes.37 Q Okay.38 A But yes, divorce would be.39 Q That's another threat that can be used against40 women to stay within a marriage?

41 A Yes.42 Q All right.43 A And in particular in Islamic countries where men44 have a unilateral right of divorce.45 Q Right. And divorce isn't criminalized in Canada,46 of course?47 A Yes.




1 Q That's right. And so those two are consistent2 with an international human rights approach?3 A Yes.4 Q All right. And now, of course if polygamy is a5 crime or polygyny is a crime it makes it6 considerably more difficult for a women to access7 relief if she is leaving a polygynous8 relationship; isn't that correct?9 A Not necessary, no.10 Q But it can? I take it you would agree with me11 that the threat of prosecution deter some women12 from accessing relief?13 A I think it would depend on the context and the

14 particular law of the country you're dealing with.15 It might, but it might not.16 Q All right. It might.17 A For example, on divorce, if she can have spousal18 maintenance it's not necessarily she's entitled to19 that relief is a matter under international human20 rights law. So the threat of prosecution might21 not necessarily affect how she would actually get22 relief on dissolution.23 Q So as a matter of human rights you would say she24 would still be entitled to that relief?25 A Right. I think again it depends on the law, the26 context, how it's applied, and I don't think you27 can say one precludes the other.28 Q All right.29 A Or draw a conclusion from how that provision, how30 that guidance in international human rights law31 has been interpreted.32 Q Now, one of the -- one of the texts you site in33 your report is a recent book by Martha Bailey and34 Amy Kaufmann?35 A M'mm-hmm.36 Q And you cite it, for example, on their discussion37 of harms varying depending on context. And that's38 a book called Polygamy in the Monogamous World:39 Multi-cultural challenges for western law and40 policy?

41 A Right. And what paragraph is that cited at?42 Q There are a few paragraphs. You have it at, and43 I'm not sure this is exhaustive, but for example44 page 13 of your report, and it's at footnote 37.45 So the statement in your text is:4647 The material and health harms associated with




1 polygyny vary across and within different2 legal and social contexts.34 And it's that text that is referenced there?5 A Correct.6 Q So you take that as a well researched text on7 polygamy in it's various contexts?8 A Yes, it's a comparative law. It's not looking at9 international human rights law. It's a10 comparative law book which is different from --11 which deals with comparative law, not12 international human rights law.13 Q Right. And if I can pass up an extract from that

14 text. And Professor Cook, would you agree that --15 and please take your time in looking through it,16 this is an extract from the Bailey and Kaufmann17 text that you cite in your report?18 A Yes, it is. Although you don't xerox page 134 and19 it --20 Q No.21 A You obviously are referring to another reference22 to it.23 Q That's right. That's right. And you'll see if24 you turn to page 161 of that extract, among other25 things what they discuss, and it's at the bottom26 paragraph on that page, "numerous international27 bodies have condemned polygamy." And then they28 talk about for example CEDAW and what CEDAW has29 found in relation to polygamy. So there is an30 international law component of course to this31 text?32 A There is an international -- it's describing33 certain aspects of international law. From my34 read it's two and a half pages. Not even two and35 a half.36 Q All right. And if you continue a few pages on in37 that text to page 185. And the fourth paragraph38 down on that page before the heading "Social39 Services" you will see that -- you will see that40 the conclusion that Bailey and Kaufmann reach on

41 this particular point or on a particular point42 that they're discussing here is:4344 Whatever approach is taken to assisting women45 who leave plural unions, the continued46 criminality of polygamy must also be47 considered. Any plural wife coming before




1 the courts to claim any relief would risk2 admitting to a crime and putting her family3 and community at risk. This is a problem4 even if the criminal provision is not often5 enforced, and particularly not enforced6 against women. The criminalization of7 polygamy hampers efforts to assist women and8 children in polygamous communities in every9 way, including not only their ability but10 their willingness to seek legal assistance on11 the breakdown of their relationships.1213 That's a reasonable conclusion that they draw?

14 A That's her conclusion. I'm not sure I could say15 it's reasonable because again I think it depends16 upon context and how the criminal law is enforced.17 For example, as you well know, there's discretion18 in how you use criminal law, so I'm not sure I19 agree with that conclusion.20 Q Okay. Much depends on context in discussing21 polygamy, of course.22 A Well, certainly in terms of the international23 human rights context they continually refer to24 context, so that's why they refer to "all25 appropriate measures." Now, with regard to this26 particular Bailey and Kaufmann book I don't think27 they get into the details of how international28 human rights law is applied in different29 countries. They look at the comparative law30 aspect which is very different. And we do not31 rely on this -- I do not rely on this book for its32 analysis of how international human rights law has33 been applied in the domestic context, even though34 I grant you that they do have one or two35 paragraphs on citing CEDAW. But that's purely36 descriptive. It does not look at the analysis of37 how international human rights law is applied in38 particular contexts.39 Q Fair enough. While you adopt their book for40 certain purposes you don't adopt it for this one?

41 A Correct.42 Q All right. Now, turning in your report to43 paragraph 143.44 THE COURT: Are we going to mark that?45 MS. HERBST: Yes, please, My Lord.46 THE CLERK: Exhibit 126, My Lord.47




1 EXHIBIT 126: 24 page double-sided p/c document2 titled "Polygamy in the Monogamous World" by3 Martha Bailey and Amy J. Kaufman; Copyright 20104 on 2nd page56 MS. HERBST: I should say as well while it's helpful --7 it's great to have the excerpt marked it's also --8 the full text is in the Brandeis brief which is9 Ms. Isbister's affidavit, Exhibit C, tab 2.10 THE COURT: And the paragraph in the report?11 MS. HERBST: Oh, paragraph 143, please which is12 starting on page 51. And this is continuing in13 the discussion of appropriate measures to address

14 polygyny.15 Q And what you say, Professor Cook, in the third16 sentence here is that "where polygyny is deeply17 entrenched it might be that criminal law measures18 are needed" and then you list facets of that need:1920 To demonstrate the inherent wrongs of21 polygyny, to punish parties officiating in,22 facilitating and participating in polygynous23 unions and to deter future such practices.2425 That's an accurate statement of your view?26 A Yes, it's an accurate statement of that sentence27 but it doesn't preclude looking at situations28 where polygyny isn't necessarily deeply29 entrenched.30 Q Well, it's a situation of deep entrenchment that31 you deal with in that sentence?32 A In that sentence, yes.33 Q Okay. And you refer in your footnote there to the34 concluding observations of the Human Rights35 Committee on Uzbekistan?36 A Sorry, what reference is that?37 Q Footnote 277. That's the footnote for the38 sentence I read out where polygyny is deeply39 entrenched.40 A Okay. I'm with you.

41 Q Okay. And I would just like to hand up a copy of42 that -- those concluding observations. And43 Professor Cook, would you agree those are the44 concluding observations that are referenced in45 paragraph -- or footnote 277 of your report?46 A Yes.47 MS. HERBST: Okay. And may I also have that marked,




1 My Lord, as an exhibit.2 THE CLERK: Exhibit 127, My Lord.3 THE COURT: Thank you.45 EXHIBIT 127: 8 page p/c document on United6 Nations International Covenant on Civil and7 Political Rights letterhead titled "Concluding8 observations of the Human Rights Committee" dated9 7 April 20101011 MS. HERBST:12 Q And just in terms of geographic placement, you'd13 agree, Professor Cook, Uzbekistan is a former

14 Soviet republic?15 A Right. A western nation, m'mm-hmm.16 Q And one of it's neighbours is Afghanistan?17 A Correct.18 Q And would you agree with me that it's population19 is about 90 percent Muslim?20 A If that's what you say. But it is highly Muslim,21 yes.22 Q All right. Highly Muslim. That's fine with me.23 And you will agree there have been some reports24 about polygyny being fairly widespread in that25 country?26 A M'mm-hmm.27 Q That's correct?28 A Correct.29 Q And Uzbekistan generally speaking has a fairly30 poor human rights record?31 A I'm not an authority on Uzbekistan. I'm only32 looking at the treaty bodies and how they dealt33 with the issue of religion. So I don't want to34 really ...35 Q Okay. So just looking at how this treaty body,36 the Human Rights Committee which issued this37 concluding observation, has dealt with Uzbekistan38 and its human rights, if we could turn to39 paragraph 13, and you may tell me, Professor Cook,40 that you don't know one way or the other. But

41 what the Human Rights Committee says here is:4243 The committee remains concerned about the44 persistence of reports of violence against45 women, in particular domestic violence. In46 spite of various measures taken by the state47 party it remains concerned that domestic




1 THE CLERK: I'm fine, My Lord.2 THE COURT: Okay. Anyone else. Are you last to cross?3 MS. HERBST: Unless Mr. Wickett --4 MR. WICKETT: I have reserved the right, My Lord, but I5 believe my learned friend here is covering all the6 ground. I don't expect to have any.7 THE COURT: Let's see if we --8 MR. JONES: I wonder if your thought is to relief us of9 coming in tomorrow, and I was just going to10 suggest that we may be experiencing some tightness11 with respect to our schedule for the rest of the12 month and so we could usefully make use of some of13 tomorrow.

14 THE COURT: That's fine. I just want to -- if we can15 get Professor Cook off to Toronto tonight she16 might appreciate that.17 MS. HERBST: Certainly if I can continue that would be18 much appreciated.19 THE COURT: Let's go.20 MS. HERBST: Okay.21 Q Now, you'll agree with me, Professor, Cook22 polygamy is not deeply entrenched in Canada?23 A It depends on what you mean by "deeply24 entrenched."25 Q There's not a significant and widespread practice26 of polygamy in Canada?27 A It's not widespread but I think there's a28 significant practice. I think in international29 human rights law it's the difference between grave30 or systematic. It's probably not systematic as it31 is referred to in international human rights law32 but it is grave.33 Q And so you've said that in your report you're not34 dealing with polyamory?35 A Right. I'm only dealing with the practice of36 polygyny as is explained in paragraph 13 and 14 of37 my report.38 Q And so the instances of which you're aware of that39 occurring in Canada are Bountiful?40 A Yes, and there might be other instances among

41 Muslim communities but I don't address those in my42 report.43 Q And you're not aware of whether or not that is the44 case?45 A I am not aware but it wouldn't surprise me if it46 did exist.47 Q All right. Now, I note that -- or I -- now, you




1 cite the Law Reform Commission of Canada's working2 paper on bigamy in your report as well?3 A M'mm-hmm.4 Q And you're aware that its authors describe5 polygamy as a marginal practice which corresponds6 to no meaningful, legal or sociological reality in7 Canada?8 A Yes.9 Q And you disagree with that?10 A A marginal practice. Well, in terms of11 international human rights law what you're looking12 for is whether there is a practice. How13 widespread, that's not necessarily a form of

14 inquiry. Where it exists and it's grave that's15 sufficient to be actionable under international16 human rights law. It does not necessarily have to17 be systematic. The authority for this is the18 optional protocol to the Women's Convention where19 you can institute an inquiry and this could be20 done in Canada where the practice is grave. It21 does not have to be systemic.22 Q And there has been no inquiry to date in Canada in23 this regard?24 A There also been no inquiry by the Women's25 Committee of -- under the optional protocol.26 Q And you are aware that the authors of the working27 paper on bigamy recommended removing the criminal28 prohibition on polygamy?29 A Yes.30 Q All right. And you're aware that Bailey and31 Kaufmann also recommend decriminalizing polygamy?32 A I am aware. But neither of those reports look at33 it through the lens of international human rights34 law.35 Q All right. And you rely as well in your report on36 an article by Shayna Sigman called "Everything37 Lawyers Know About Polygamy is Wrong"?38 A Yes, I refer to that article.39 Q You refer to that for certain harms that you40 attribute to polygamy?

41 A Yes.42 Q And you're aware that she also recommends43 decriminalizing the practice?44 A Yes, I am aware.45 MS. HERBST: Those may be my questions, My Lord. If I46 may have a moment.47 THE COURT: Sure.



80Certification

1 MS. HERBST: No further questions, My Lord. Thank you.2 THE COURT: Redirect? Sorry, Mr. Wickett.3 MS. HERBST: Actually I apologize. I don't remember if4 I marked the Uzbekistan concluding --5 THE COURT: 127. Mr. Wickett, anything.6 MR. WICKETT: No, nothing further.7 THE COURT: All right. Redirect, Mr. Reimer?8 MR. REIMER: No, thank you.9 THE COURT: Thank you. Professor Cook, thank you very10 much for coming. Enjoy your flight back.11 THE WITNESS: Thank you.12 THE COURT: And tomorrow we'll have some more video I13 believe.

14 MR. JONES: Yes, My Lord. We're in your hands. I --15 recognize that an entire day of video is quite16 draining for people. We could certainly fill the17 morning I think.18 THE COURT: Why don't we see how we're doing. Let's19 start at 10:00 then and play it by ear.20 MR. JONES: Thank you, My Lord.21 THE CLERK: Order in court. Court is adjourned to22 Friday, January 7th, 2011 at 10:00 a.m.2324 (PROCEEDINGS RECESSED AT 4:05 P.M.)2526 I, Spencer J. Charest, Official Reporter27 in the Province of British Columbia, Canada,28 do hereby certify:2930 That the proceedings were taken down by31 me in shorthand at the time and place herein32 set forth and thereafter transcribed, and the33 same is a true and correct and complete34 transcript of said proceedings to the best of35 my skill and ability.3637 IN WITNESS WHEREOF, I have hereunto38 subscribed my name this 29th day of January39 2011.

01-06-2011 proceedings canadian reference case day 16

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