12-16 - 2010 Polygamy Reference Case Proceedings- Day 14

8/7/2019 12-16 - 2010 Polygamy Reference Case Proceedings- Day 14

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1Rose McDermott (for AG of Canada)In chief by Ms. Wray

1 December 16, 20102 Vancouver, B.C.34 (DAY 14)5 (PROCEEDINGS COMMENCED AT 10:00 A.M.)67 THE CLERK: Order in court. In the Supreme Court of8 British Columbia at Vancouver this 16th day of9 December 2010, calling the matter concerning the10 constitutionality of section 293 of the Criminal11 Code, My Lord. And witness I remind you you're12 still under affirmation.13

14 ROSE MCDERMOTT, a witness15 for the AG of Canada,16 recalled.1718 THE COURT: Thank you. Ms. Wray.19 MS. WRAY: Yes, My Lord, this morning we are continuing20 with the direct testimony of Professor Rose21 McDermott, and we left off yesterday afternoon on22 page 10 of her report which is Exhibit 41.23 THE COURT: Thank you.2425 EXAMINATION BY MS. WRAY: (Continued)26 Q And at paragraph 49, Professor McDermott, you have

27 outlined the dependent variables that are examined28 in your statistical analysis. Could you remind us29 again, the difference between a dependent and an30 independent variable.31 A Yes, so an independent variable can be roughly32 equated to the variable that you think is the33 cause and the dependent variable would be the34 thing that is the effect. So you're exploring the35 temporal relationship between the first thing, the36 independent variable, and the second thing, the37 dependent variable, the effect.38 Q And at paragraph 49 there's a list of -- by your39 count this is 18 dependent variables?40 A Yes.41 Q And how is it that you came to choose these42 particular variables?43 A These variables were chosen based on theoretical44 speculation of factors that we would expect to be45 consequent to polygynous marital structures from46 the perspective of evolutionary psychology. There47 may be many additional other variables that could


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1 be affected by polygamy that I was not able to2 look at because data isn't available. So I can3 speculate about other variables but I didn't have4 the data to explore them. And so these were the5 variables that I expected might potentially be6 related to -- that I actually had the data to7 explore using the WomanStats database that I8 described yesterday.9 Q On that same page at paragraph 52 you note in the10 first sentence that it is important to control for11 variables that could cause the outcomes you're12 examining?13 A Right.

14 Q Can you explain that to us, please.15 A Right. So whenever you look at a statistical16 analysis there's always a possibility that the17 relationship that you're exploring is, in fact,18 explained by some other cause. So the classic19 example with this is smoking and lung cancer20 where, for a long time, you know, the smoking21 companies, you know, RJ Reynolds would say smoking22 doesn't cause cancer, there's some third thing23 like a genetic factor that causes you both to24 smoke and causes cancer. And it took experimental25 research to actually show lung tissue in a petri26 dish exposed to particular kinds of tars and27 nicotine that cause lung cancer. But in essence,28 what you do when you control in a statistical29 model is you try as best you can to say, if you30 hold this third variable constant and you change31 this other variable do you still get an effect on32 the things that you are interested in explaining.33 And if you do statistically it means that those34 things still exert an effect independent of the35 thing that you're controlling for. If it doesn't,36 the statistics come out not statistically37 significant, and then you know that it may not38 really be explaining it the way that you had39 hypothesized.40 Q And in your analysis what was the control you

41 used?42 A I used gross domestic product as measured in terms43 of US dollars, which is the standard measure that44 is used for wealth.45 Q Why did you do that?46 A I did that because that is in the existing47 literature, not just with regard to polygyny but


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1 with regard to an entire host of social and2 political variables. Really the monster variable3 that explains an enormous amount of things in4 complex social and political systems. And so if5 you look at a lot of work, for example, in6 economic development or, you know, processes of7 democratization or things like that, GDP is almost8 always the thing that is most powerful in terms of9 explaining a whole host of variety of outcomes10 that people are interested in explaining. If you11 can find a variable that still emerges significant12 controlling for GDP that really means you have13 something, because GDP in all the literature is

14 really the monster variable.15 Q Are there are other controls that are also what16 you would characterize as monster controls?17 A No, because most of the other variables may relate18 to specific outcomes but not to a whole variety of19 outcomes. So for example you could look at20 differences in political structure but they would21 only affect some of the variables. They wouldn't22 affect other variables, for example, those related23 to health. But GDP, because it influences many,24 many things, including the amount of resources a25 society has to devote to legal structures and26 health structures and educational structures,27 infuses many aspects of society in a manner unlike28 almost any other.29 Q I would like you to turn now to page 11. Here you30 begin to discuss the types of models you used in31 your statistical analysis. You've characterized32 this as a regression analysis?33 A Yes.34 Q I'm hoping you can explain for us what exactly a35 regression analysis is.36 A Okay. So before I start I just want to say that37 what I'm about to say is really, really, really38 simplistic, so I'm going to try to make it simple39 and there's obviously many caveats to the way that40 I'll describe it.

41 THE COURT: You came to the right place.42 THE WITNESS: So the simple thing to do is to say that43 what regression does is it tells us an estimate of44 additive linear effects. That means if you take a45 bunch of variables and you combine them together46 what does it tell us about the effect on a given47 outcome. So there are many ways you can do this


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1 analysis, and I use two specific ways and I will2 talk about each of them in a minute. But to3 characterize regression overall what you're trying4 to do is say what is the relationship between5 these two variables. If I vary the thing on the X6 axis how does it affect what varies on the Y axis.7 So if I affect how wealthy a country is how does8 it affect its rate of maternal mortality or9 something. So you're trying to look at the10 relationship between those two things11 statistically, and that's what regression does.12 Q As you mentioned you do use two different models13 in your analysis. This is again on page 11. One

14 is called ordinary least squares regression?15 A Yes.16 Q And the other is called ordered logistic17 regression?18 A Yes.19 Q Can you give us an everyday example of how these20 two different models are, in fact, different.21 A Yes. So the main way in which they're different22 has to do with the dependent variable, which is,23 remember, the thing we're trying to explain. The24 effect.25 So with ordinary least squares what you do is26 you have a dependent variable that basically27 there's a lot of them. There's many, many, many,28 many, many of them. And they're really evenly29 spaced. Money is the best example. The30 difference between $1 and $2 is exactly the same31 difference as the difference between $2 and $3.32 Each increment is exactly the same and there is a33 lot of them.34 When you don't have that ability to do that35 and the dependent variable has a different36 characteristic and there are fewer of them, then37 you use ordered logistic regression. That's when38 you have a really limited number of cases, and39 there's no consensus about what limited is. You40 know, three, four, five, six, something like that.

41 But not hundreds. And it's where you can't really42 tell that the difference between one and two and43 two and three are exactly the same. So, for44 example, if I have a scale that asks you how happy45 you are the difference between being extremely46 happy and somewhat happy may or may not be the47 exact same degree as the difference between being


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1 somewhat happy and neither happy nor unhappy.2 Like, they're not the same as the difference in3 one dollar is always the same. And that makes the4 difference between the kinds of analysis you use.5 So what you're basically doing is saying given6 the dependent variables I have what is the best7 tool for the job. And so you use the best tool8 for the job and the job is based on the dependent9 variables you have and the characteristics of the10 dependent variables that you have.11 Q And what would be an everyday example of how you12 could use those two different models.13 A So there's a really good example in an article

14 that's actually coming out this week in the15 Proceedings of the National Academy of Sciences,16 which looks at the relationship between happiness17 and economic development. So again here's a18 perfect example where it's all about GDP; right?19 You're actually looking at economic development in20 terms of gross domestic product as measured in US21 dollars; right? Big monster variable. You're22 saying, does money make people happy; right? And23 you have lots of people who have an intuition that24 money makes you happy. Well, guess what, it turns25 out that if you look at all countries in the world26 as countries get richer people get less happy.27 And so what you're looking at is those28 relationships, and what is nice in that example is29 that with one of the things that you're looking30 at, money, it's a really ordered variable.31 Infinite amounts of money, each division is32 exactly the same, one dollar, but happiness is a33 restricted scale. Usually 5 points, sometimes 734 points, and you can't really figure out if it's35 exactly the same between being extremely happy,36 somewhat happy, neither happy nor unhappy,37 somewhat unhappy and, you know, completely38 miserable.39 Q Okay.40 A And you can look at the relationship either way.

41 You can look at the relationship of wealth on42 happiness or happiness on wealth. You can look at43 the directionality either way using these44 statistics. It just depends on what your a priori45 theoretical model is. If you think money makes46 people happy or if you think happiness makes47 people rich. Now, that may be a silly but


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1 regression allows you to discard alternative2 hypotheses because the math won't come out. It3 doesn't show up as statistically significant.4 Q So how is it then in your report, how did you5 choose which model went with which variable?6 A I chose, as I said, sort of the best tool for the7 job and that was determined by the characteristics8 of the dependent variables. So if I had a9 dependent variable that had a lot of categories10 that were sort of evenly spaced I used ordinary11 lease squares; if I had a restricted number of12 variables that weren't so evenly spaced then I13 used ordered logistic regression.

14 Q And we're going to go into the actual meat of that15 analysis, if you will now, and that begins at16 paragraph 59 of your report.17 A Okay.18 MS. WRAY: This is where you begin to present the19 results of your analysis for each of the variables20 that you've chosen. And, My Lord, Professor21 McDermott has, as you will see on your screen and22 also on the screen in front of the gallery, a PDF23 version of the figures that are actually in her24 report. They are exact reproductions of the25 figures at the end of her report. We're simply26 projecting this for ease of going through each of27 these figures and having Professor McDermott28 explain how it is they work.29 Q So I'm going to ask you, Professor McDermott, to30 begin with the variables that use ordinary least31 squares regression. And if you could turn to the32 birth rate figure, which I believe is already up33 on the screen.34 A Yes.35 Q It's figure 2 in your report. Take us very36 carefully through how this figure works and what37 it shows us about the relationship between birth38 rate and polygyny.39 A Okay. The figures that look at ordinary least40 squares regression all look similar to this, and

41 so I will describe what you're looking at.42 The figure starts out saying "scatter plot"43 and what scatter plot refers to is literally the44 scatter of data on this two spaces. So scatter45 means each red dot. Each red dot refers to or46 represents one, and in some cases more than one47 country if the data point is exactly the same, and


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1 how they lie in the space of that country relative2 to where it falls on the scale of polygyny from 03 to 4, and rates -- on the vertical axis rates of4 birth per thousand. These are live births per5 thousand women in society. So 10 would be 10 live6 births per thousand. And each red dot refers to7 one or more countries like that.8 So what I do with the blue line that you see9 there, is that that's the regression line. That's10 the line of best fit, meaning that's the line that11 most accurately captures the data across that12 scatter plot. The grey line that you will see is13 the confidence interval and the confidence

14 interval basically says, with 95 percent15 probability, the line that best captures all the16 data you see is that blue line. There is a17 5 percent possibility that that blue line is, you18 know, somewhere else, but if it is somewhere else19 it's within that grey line. So it's basically20 saying that's the best line to capture all the21 data to show you the relationship between births22 on the vertical axis and degree of polygyny on the23 horizontal axis.24 At the bottom where the note says "bivariate25 regression," bivariate just means two. It means26 we're looking at two variables. One variable is27 birth per thousand; one variable is polygyny. And28 it's used to calculate the line of best fit.29 Again that line of best fit is the blue line that30 you see on the graph.31 Well, the confidence interval, again, that's32 the grey line, is uncertainty of prediction. What33 that means is I'm not starting with an a priori34 assumption about the relationship between these35 two variables. I'm not assuming going in that the36 relationship goes in one direction or another37 direction.38 And this relates to another important aspect39 of all the figures. When you conduct statistical40 analyses you can do it with different kinds of

41 tests. One is called a one-tailed test and one is42 called a two-tailed test. When you have a43 one-tailed test what it means is basically that44 you have a pre-existing hypothesis about the45 direction of causality. It's akin to in the law46 leading a witness. It's not exactly like you're47 not lying but you have an idea about where you


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1 want to go.2 With a two-tailed test you don't have that;3 right? You have a situation where it could go4 either way. You're agnostic about whether the5 relationship is positive or whether the6 relationship is negative. And it could go either7 way and the statistics could show you that it8 could go either way. So it could show you, for9 example, that polygyny depresses the number of10 births per thousand. That is a much more11 conservative test. This two-tailed test is a much12 more conservative test, because it can show you13 that the relationship can be positive or negative

14 and it's a very statistically conservative test.15 In all of the tests that I employed I employed16 this more conservative two-tailed test17 Q And just one further question about all of the18 figures. Does the steepness of the line tell us19 anything?20 A Yes. Thank you. The steepness of the line --21 it's called the slope of the line, and in some of22 the figures that you'll see the line is steeper23 than in other lines. And when it's steeper it24 means that the relationship between the variables25 is stronger. So when the line is flatter, as long26 as it's statistically significant, it still means27 that the likelihood that the causal relationship28 is fabricated is extremely unlikely. Fabricate29 isn't quite the right word. What I mean is that30 the likelihood that the null hypothesis is false31 is extremely unlikely. When the graph -- when the32 line is steeper it shows a stronger relationship.33 So those are both two independent measures that34 are statistically validated showing the strength35 and robustness of the relationship between the36 variables we explore.37 Q And so then just to recap, this figure what is it38 showing us about the relationship of births per39 thousand and polygyny?40 A So what this figure shows is that as the degree of

41 polygyny increases, so as you recall our scale42 basically shows the prevalence of polygyny. So as43 there are more polygynous marriages in a society44 the number of births per thousand increases so45 that on average if the society has very little46 polygyny, if it's zero, you get births per47 thousand around 15. As the society moves up


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1 toward its maximum value of polygyny where more2 than 25 percent of women are in polygynous3 marriages you'll see that the range rate of birth4 is closer to 35 births per thousand.5 And this line is consistent. You can see6 it's a linear relationship, as polygyny rises7 number of births per thousand rises as well.8 Q And you have used ordinary least squares9 regression for a number of your other variables?10 A Yes.11 Q I would like you please to take the court through12 each of those figures obviously in a much briefer13 way now we understand how the figures themselves

14 work but explain what each of those figures shows.15 A Okay. So the first one that I will show is16 figure 1, and this shows the exact same phenomenon17 you just saw except this dependent variable is not18 births per thousand but it is discrepancy. As you19 may recall from yesterday what discrepancy refers20 to is discrepancy between laws on the books and21 the practice of law on the ground. So as polygyny22 increases in a society there's greater discrepancy23 between what appears on the books and what is24 actually practised on the ground. And this line,25 as you'll see, has a very clear linear slope that26 as polygyny increases discrepancy increases.27 Figure 3 shows the scatter plot for births for28 women aged 15 to 19. This is similar to but also29 different from overall births because births to30 women who are young are particularly apt to result31 in risks to both the mother and the child. And32 what you see in this figure is that there's a33 clear linear relationship between the degree of34 polygyny and the number of births that occurred to35 women who are essentially adolescents, between the36 ages of 15 and 19.37 I should be clear that this does not mean that38 there aren't births to girls under age 15, but I39 did not have data to explore that although there40 are clearly anecdotal reports in both polygynous

41 and non-polygynous communities showing girls42 giving birth as young as 12.43 Figure 4 shows, and this actually is a nice44 example of showing how the slope can occur in the45 other direction. So this shows primary enrolment46 for girls. What this means is girls who are47 enrolled in primary education prior to high


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1 school. So as you see in this graph as polygyny2 increases the number of girls who are enrolled in3 school as a percentage of the population of girls4 in that age range declines.5 This, and you will see here, you can see the6 sort of contrast. With primary education it's a7 flatter line; with secondary education it's a8 steeper line. Here you see that as polygyny9 increases the amount of secondary education for10 girls much more substantially declines. So you11 have pretty strong decline from less polygamy to12 more polygyny in secondary enrolment for girls.13 The next two look at the same variables for

14 boys. What you see is a flatter line. I should15 be very clear that with all of these statistics16 these are statistically significant results, so17 they all pass the conventional threshold for18 statistical significance even though some of the19 cases have flatter lines and some of them have20 steeper slopes. This one shows that as polygyny21 increases the number of boys who are enrolled in22 primary education -- again, this is up through 8th23 grade, what would be 8 grade in the United States,24 declines. And what you'll see here is a much more25 substantial decline in the rate of education for26 boys in secondary education. I should note that27 this rate of decline is steeper than the one for28 girls in similar age range.29 This -- figure 8 examines the scatter plot for30 differences in HIV rate across polygyny. So when31 I say difference in HIV rate what I'm actually32 looking at is the difference in the rate of males33 who are infected with HIV versus females who are34 infected with HIV. Females in general for all35 kinds of physiological reasons are much more36 likely to become infected with HIV in general. As37 you know, it's differential rates by sex, and so38 what this looks at is how that difference changes39 as a function of polygyny. So as polygyny40 increases the difference in infection rate

41 increases so that you get more women who get42 infected with HIV at higher rates of polygyny43 across rates of difference.44 And I believe -- okay. Figure 9 looks at age45 of female marriage. So this was a strong46 pre-existing hypothesis in the literature that47 polygyny drives down the average age of female


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1 marriage. So we explored that statistically and2 found that as polygyny increases the average age3 at which women marry declines substantially. And4 this again you can see both by the slope and the5 direction that it -- when polygyny is zero, when6 there's low levels of polygyny the average age of7 female marriage is around 25 and declines to8 around 20 by the time you reach higher levels of9 polygyny, although you can see in this graph that10 there's individual cases that vary as with all of11 them.12 Figure 10 looks at maternal mortality.13 Maternal mortality refers to the number of women

14 who die in childbirth as a result of giving birth.15 This is a variable that is related to both number16 of births and age of births because women are more17 likely to die in child birth if they give birth18 young and with the sequential birth of each child19 because each child adds an independent risk. And20 what you see here is the rate of maternal21 mortality increases dramatically across degree of22 polygyny, so that the rate is pretty low where23 polygyny is close to zero and rises steadily24 across the graph so that it reaches its highest25 level where polygyny is most common.26 The final of the variables -- actually I have27 the arm spinning one as well, but this looks at28 female life expectancy. So what this shows is29 that female life expectancy declines as polygyny30 increases such that the average age of life31 expectancy for women in essentially non-polygynous32 societies right now is around 78 or 79, at least33 in western cultures like Canada and the United34 States -- the longest lived women in the world are35 in Japan -- and declines pretty substantially36 across rates of polygyny so that it's much closer37 to around 60 at the highest rates of polygyny. At38 least some of this is related to higher degrees of39 maternal mortality but not all of it is related to40 higher degrees of maternal mortality.

41 The one remaining figure that relates to42 ordinary least squares regression is that related43 to defence spending and arms expenditure. As I44 mentioned, this dependent variable data which I45 described yesterday is not from the WomanStats46 database, it's from the Stockholm institute peace47 research -- sorry, Stockholm International Peace


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1 category I can look at it by these graphs. So2 I'll do that with this mouse.3 If I'm at the lowest level of polygyny the4 chances that a given country that is at the5 highest level of domestic violence is in this6 category is about 20 percent; right? That's what7 .2 means. But by the time I'm at the highest8 level of polygyny, category 4, the probability9 that a country is in the highest level of domestic10 violence is 60 percent.11 You will see that some of these lines are not12 linear lines and they can go back and forth. But13 that the highest category shows a clear increase

14 in probability such that you have a much greater15 probability that a country which is at the highest16 level of domestic violence also falls at the17 highest level of polygyny, again, about a18 60 percent probability19 Q And then if you could briefly take us through the20 remaining variabilities that use the same ordered21 logistic model.22 A So in figure 13 you can see this with regard to23 the dependent variable related to female genital24 mutilation. Here the blue line represents the25 lowest category of female genital mutilation and26 the green line refers to the highest category of27 female genital mutilation, where more than28 50 percent of women in the society have suffered29 female genital mutilation. I should be very clear30 that the extant medical literature on female31 genital mutilation equates it to the amputation of32 the penis. This is a very serious harm.33 In the highest category, category 4, you see34 that the highest level of female genital35 mutilation that basically there's almost a36 90 percent probability that if you have more than37 50 percent of women in the society suffering38 female genital mutilation it's at the highest39 level of polygyny, where more than 25 percent of40 women are in polygynous marriages.

41 Figure 15 looks at inequity, and as I42 mentioned yesterday inequity is also a legal43 category, and this refers to the ways in which men44 and women are treated differently before the law.45 It incorporates several different characteristics46 which include things like differences in custody,47 differences in inheritance, differences in divorce


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1 law, differences in laws related to abortion.2 What this shows is that low levels of inequity,3 meaning men and women are treated quite equitably4 in the society, is the blue line, going all the5 way up to the light green line which shows the6 highest rates of inequity. Interestingly in this7 graph what you will see is that the highest degree8 of inequity falls to those which are in the9 penultimate category of inequity. Not the final10 category of inequity but the penultimate category11 of inequity shows that there's about a 50 percent12 likelihood that a country in that area would fall13 within the highest rate of polygyny.

14 So this is my final figure and this looks15 again at data that does not come out of the16 WomanStats database but that comes out of the17 Freedom House database, and looks at the degree of18 freedom as categorized by both political rights19 and civil liberties in a given society and20 examines it from a country that's essentially21 considered not free, which is the blue line, to22 free, which is the green line. And you will see23 here that there is relationships such that the24 countries that are not free are much more likely,25 meaning 50 percent likely, to fall in the category26 with the highest rate of polygyny.27 Q And you have two other variables remaining, life28 expectancy and sex trafficking?29 A Oh.30 Q And those models, which were used for those?31 A I thought I had shown life expectancy.32 Q Life expectancy is figure 11.33 A Oh. I thought I had shown life expectancy.34 Q Sorry. You may have show it.35 THE COURT: Yes.36 THE WITNESS: And you're right about the sex37 trafficking about, but I do believe --38 MS. WRAY:39 Q Yes, thank you. And the sex trafficking then.40 Thank you.

41 A Okay. Then the sex trafficking, that's this one.42 Thank you.43 The sex trafficking variable looks at rates44 of sex trafficking and this variable doesn't just45 looks at prevalence of sex trafficking but it also46 look at a country's willingness to enforce the47 2000 sex trafficking laws which persecute those


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1 who perpetuate sex trafficking. And this goes2 from a category where the blue line PR 1 refers to3 low levels of sex trafficking and high levels of4 enforcement up to PR 4, which is the pink line,5 which has higher levels of sex trafficking. You6 will see here that the predicted probability of7 high rates of sex trafficking falls again in the8 penultimate category, PR 3, the green line, which9 shows that about a 50 percent probability that a10 country that has, again, reasonably high but not11 the highest levels of sex trafficking, correspond12 to the countries with the highest rates of13 polygyny.

14 Q Thank you. Professor McDermott, if you could now15 go to your PowerPoint. This was entered as16 Exhibit 116 yesterday.17 A Oh. Sorry about that.18 Q The final three slides of your PowerPoint are in19 effect a summary of what you've just said; is that20 correct?21 A That's correct.22 Q Would you just --23 A So it's just sort of an English version of the24 figures I just showed.25 Q Yes. If you could take us through the conclusions26 then, please.27 A So in terms of the three categories that I was28 asked to examine, the first being the effect of29 polygyny on women, as the rate and degree and30 prevalence of polygyny increases the age of31 marriage in women declines, the rate of maternal32 mortality increases, life expectancy decreases,33 birth rate increases, meaning the number of births34 per thousand, and also the number of births to35 women aged 15 to 19, so essentially adolescent36 birth also increases, the degree of sex37 trafficking increases, female genital mutilation38 increases, the degree of domestic violence39 increases.40 I remind the court that domestic violence is

41 also an omnibus measure that includes marital rape42 and other forms of assault in addition to domestic43 violence. It includes homicide. And sex44 differences between men and women with regard to45 HIV.46 The numbers 11 to 22 refer to the page of the47 report that these characteristics correspond to.


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1 The second category I was asked to look at2 relates to the effect of polygyny on children.3 And here I found that as polygyny increases the4 rate of primary and secondary education for girls5 declines. Secondary education more extremely than6 primary. And the rate of primary and secondary7 education for boys also declines, again more8 prominently in secondary education for boys as9 well.10 And thirdly, the effects of polygyny on the11 nation state which was the third category I was12 asked to explore. As polygyny increases the13 degree of inequity in family law increases,

14 meaning the degree to which women are not treated15 equitably before the law increases. The16 discrepancy between what the law is on the books17 and the practice on the ground increases. The18 amount of money spent on weapons and defence19 increases. The degree and number of civil20 liberties declines, and the degree and number of21 political rights in the society overall declines.22 And I remind the Court here that all of these23 characteristics relegate to both males and females24 in society and are not harms that just devolve to25 females alone.26 Q Professor McDermott, are the findings that you27 presented here in your summary of your statistical28 analysis, are those findings consistent with the29 findings in the literature review you conducted?30 A Yes.31 Q And would you expect that all of these dependent32 variables which you have summarized here, would33 you expect all of these to result from polygyny34 wherever polygyny occurs?35 A Yes.36 Q Now, the penultimate section of your report begins37 at page 23. This is part four, the causes of38 observed effects on polygyny. Can you please39 provide us with a short synopsis of what this40 section entails.

41 A Yes. So this section encompasses an argument42 related to both patriarchy and sex ratio43 imbalances and how that relates to polygynous44 structures. And here I am not making an argument45 that patriarchy is either necessary or sufficient46 but rather that it's supportive and permissive of47 polygynous structures which involve typically the


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19Rose McDermott (for AG of Canada)Cross-exam by Mr. Macintosh

1 Q And in your affidavit on this point, that is the2 point of what part Exhibit 116 plays in your3 analysis, you said in oral testimony when you were4 speaking in the court yesterday that to get into5 this, to get into this WomanStats database and6 website the material has to be vetted?7 A Yes.8 Q And it has to come from a credible source?9 A Yes.10 Q And you made a point of saying it isn't like, I11 think you said, Wiki?12 A Right.13 Q Meaning that someone can't just toss data in here

14 without it having some veracity?15 A That's correct.16 Q And in your -- I keep saying affidavit, but in17 your report at paragraph 15 at page 3 you speak18 further to this website, WomanStats, and what19 you're referring to in your paragraph 15 is what20 is extracted in this Exhibit 116, this hardcopy21 that I've got in my hand?22 A Yes. I mean, the database is much larger than23 what you see in your hand.24 Q Yes. What I have in my hand is just a tiny25 portion of it?26 A Yes.27 Q And you say that you helped create this?28 A Yes.29 Q And that is you helped create this WomanStats30 website?31 A Not the website, the database.32 Q Fair enough. And it's been compiled from33 credentialed and credible sources, and you cite34 CIA, World Fact Book, and the UN-provided data.35 And further on in that paragraph you say how you36 carefully checked the source of all your37 information and you conclude by saying you know38 that it represents the best information available39 on a given topic. And you would stand by that?40 A Yes.

41 Q And in the affidavit -- sorry, in the report at42 the next paragraph, paragraph 16, you speak about43 the kinds of things it addresses, and then in 1744 you say it references 172 countries and you've45 used this data to conduct the extensive analysis,46 and that's true?47 A Yes.


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1 Q And then finally on this point in your report at2 page 8, paragraph 42, when you talk about your3 data sources you again, I think, are referencing4 this data; is that fair?5 A Yes, and two other databases which I've mentioned.6 Q Very well. And in this database you can search7 country by country?8 A Yes.9 Q And so that's what I did. And I searched for10 Canada, and here is what I found -- perhaps you11 can confirm that the front page comes from your --12 this database?13 A Yes.

14 Q And a number of the first few pages are15 introductory and they're not particular to Canada?16 A That's correct.17 Q And as you will see in the upper right corner I go18 from page 3 to -- I jump to page 20?19 A That's correct.20 Q With further introductory material because we're21 getting into the realm of polygyny. And then just22 after page number 21 I came to Canada, because you23 will see that Canada is referenced there as page 124 of 4?25 A Yes.26 Q And if you will turn to page 2 of 4 and if you go27 to the bottom of the page -- I don't know if28 yours -- if these have a line there. So at the29 bottom of the page -- now, it says "after reading30 through the EWC cultural files," what is the EWC?31 A It refers to a standard cultural file that has32 been used -- and I'm trying to remember what it33 stands for at the moment. It's the -- I'm not34 going to remember what it stands for at the moment35 but it's a standard cultural file.36 Q Well, who puts data into this website? Do you?37 A A variety of people put data into it, so I have38 put some data in and other coders have put data in39 and other principal investigators have put data40 in.

41 Q All right. And it references another source as --42 the acronym is CEDAW, I think, C-E-D-A-W?43 A Yes, that's the Convention on Elimination of44 Discrimination Against Women. It's put forward by45 the United Nations.46 Q And then you reference the --47 A I remember now. It's the Encyclopedia of World


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1 Cultures.2 Q All right.3 A David Levinson is the editor in chief. He's an4 anthropologist.5 Q And down at the bottom it says, "we have found no6 evidence that polygynous marriages are a national7 issue." And at the top of the page:89 They do not even appear to be a cultural or10 regional occurrence. Other evidence may be11 found in the future but as of this comment12 the practice appears to be extremely minimal13 or non-existent.

1415 And that would accord with your knowledge of16 Canada?17 A Yes.18 Q And at the next page, page 4 of 4 your website19 puts -- you've got a 4 scale measurement, and for20 polygyny in Canada the score is zero on -- I21 realize it's a different scale, I'll come to that22 later. But for the scale you used on this website23 Canada is zero which means to quote you, or to24 quote your site, monogamy is the rule and wide25 spread. Fair enough. And that's correct, isn't26 it?27 A Yes.28 Q And that reflects what you know to be the case in29 this country?30 A Yes.31 Q And you know that here in this courtroom we're32 here in the context of a constitutional reference;33 right?34 A Yes.35 Q And it's a reference in Canada about a federal law36 for Canada?37 A Yes.38 Q And yesterday you said that you studied polygyny39 only because polyandry is extremely rare. Do you40 remember that?

41 A Yes.42 Q Do you know how many polygynists there are in43 Canada?44 A I'm not aware of comprehensive data on exact45 numbers that I find credible.46 Q All right. Well, let's go to inexact numbers or47 uncomprehensive data. Can you give me your best


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1 answer for the number of polygynists there are in2 Canada?3 A The best data that I see that I trust is something4 like 10,000 marriages.5 Q And 10,000 marriages?6 A Yeah.7 Q And is that polyamorous and polygynist, polygamist8 and --9 A No, those are the ones I'm aware of that are10 polygynous. I'm not aware of any polyandrous11 ones, but that doesn't mean they don't exist.12 Q All right. Can you show me your data, please.13 A Well, you just asked me for non-credible data. I

14 mean, this is off the top of my head.15 Q Well, okay. So let's go from the top your head to16 something further. Do you have any data?17 A On?18 Q What you just said?19 A On polyandry?20 Q Yes, or polygyny, for the number you just gave to21 the court.22 A That number comes out of what I've seen in BBC23 reports on the degree of polygynous marriages in a24 sequence of newspaper articles that were written25 on the influence of increasing levels of polygyny26 in France, Britain, Canada and the United States.27 Q Very well. Can you produce that, please.28 A Not now, but I can certainly find it.29 Q And in your report you reassure the reader as to30 the soundness of your source materials. Do I read31 that correctly in your report?32 A Yes.33 Q And in your report you do that at paragraph 23 at34 page 4. And do you have page 4, paragraph 23 of35 the report?36 A Yes.37 Q And you say that all the citations are drawn from38 peer reviewed articles, and you say that only the39 best work survives this critique. And you say40 this work conforms to the highest scholastic

41 standard and it's the research readers can be most42 confident represents an accurate portrayal43 et cetera et cetera. So that's a paragraph to44 distinguish, if you will, and endorse the45 materials you've used?46 A In this literature review.47 Q Right. And in the literature review you've used


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1 the book by Ms. Jessop, have you?2 A Yes.3 Q And if we look in your report at page 6 you make4 statements in paragraph 28 and you attribute5 statements there to Ms. Jessop; is that right? Or6 to her book?7 A I'm sorry, can you tell me where you are?8 Q I can. Page 6, paragraph 28.9 A Yes.10 Q Is that right?11 A Page 6, paragraph 28. Yes.12 Q And you cite her?13 A Yes.

14 Q And is that in accord with your statement at15 paragraph 23 about your peer reviewed articles,16 et cetera? Does it meet that test?17 A No, because it's a book, it's not an article.18 Q All right. So the statement in paragraph 23 isn't19 intended to include book references?20 A That's correct.21 Q I see.22 A And that's what I said in my oral testimony23 yesterday.24 Q Very well. But you do rely on Ms. Jessop and her25 book; right?26 A In paragraph 28, yes.27 Q And in paragraph 32?28 A Yes.29 Q And Ms. Jessop -- the book you reference is the30 book called Escape which I have in my hand?31 A Yes.32 Q And that happens to be, I think, in evidence here33 by way of the Brandeis brief. And you rely on34 her, I presume, because you view her as35 authoritative from her experience?36 A It's one of the aspects of the literature review37 that help to generate potential hypotheses to be38 tested.39 Q And doesn't Ms. Jessop want polygyny to be40 decriminalized?

41 A I don't think I can speak to her intention.42 Q You have no knowledge of her view on that point on43 that topic?44 A I have knowledge of what she has written but I45 don't think I have knowledge of her intention.46 Q Do you have knowledge of what she has written or47 said with respect to whether polygyny should be


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1 decriminalized?2 A Yes.3 Q And what has she said that you knew of about4 whether polygyny should be decriminalized?5 A She does not -- I mean, she thinks it should6 continue to be held criminal.7 Q I beg your pardon?8 A She -- so my understanding of her position is that9 she thinks it should be continued to be held10 criminal.11 Q So when I saw you reference to this book by12 Ms. Jessop I went to the website for the publisher13 of the book and I just want to reference that with

14 you. And I do have a copy for His Lordship -- and15 if you look there you'll see the Random House16 website extract and it references Escape by17 Caroline Jessop and Laura Palmer, publisher18 Broadway, that's the same as it's referenced in19 your paper. In your list of publications that you20 rely upon you've got her at page 29 of your report21 and that's Jessop, Caroline with Laura Palmer,22 2007, Escape, New York, Broadway Books; do you see23 that?24 A Yes.25 Q So what the publisher said and what I extracted on26 page 2 of what I just handed you, paragraph 10,27 Caroline mentioned on the Oprah Winfrey show that28 she favours decriminalization of polygamy so that29 people could live honestly in the open with30 dignity and their children could be more31 mainstream. What are your thoughts, et cetera,32 the publisher asked the public. So I went to the33 source of all knowledge, I went to Oprah and I34 went to the website for that. And that's in35 evidence already, My Lord, here, and it's attached36 with what I just got here. And Your Lordship will37 see in the upper right corner "Lupid, Exhibit C,38 tab 13" and I will have to get the new number for39 that later.40 So here is the transcript of what Ms. Jessop

41 said on air, and in particular if you will turn to42 page 1155 and 1156. And at the bottom of the43 page -- do you have page 1155?44 A Yes.45 Q And we have Ms. Winfrey saying "what about46 decriminalization, decriminalizing it as Valerie47 said earlier" Caroline Jessop, and they have


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1 brackets because, you know, when you watch Oprah2 they write who the person is underneath. "Jessop:3 I think decriminalization, decriminalizing4 polygamy is the answer because it's more middle of5 the road. Oprah: M'mm-hmm." Ms. Jessop goes on:67 A blanket prosecution is disastrous. It sets8 up the elements, like for the community that9 I came from it set up the elements and stage10 for the very abuses to occur that are11 occurring now.1213 And on the next page she went on, at the top of

14 the page:1516 And so if there was a way to decriminalize it17 so people could live honestly and in the open18 with dignity and their children could be more19 mainstreamed.2021 And further down she indicates it isolates the22 children. And were you aware of that? Were you23 aware of her making that statement?24 A No.25 Q Well, in her book that you've cited and you rely26 upon Ms. Jessop speaks about testifying before the27 US House Judiciary Committee. Did you read that?28 Did you read that she testified on that?29 A I don't recall, no.30 Q All right. And therefore I presume you haven't31 seen what speech she gave to the US House32 Judiciary Committee?33 A No.34 Q Now, another book you rely on is the book by Brent35 Jeffs. And let's look in your report at36 paragraph 32. I think Mr. Jeffs is relied upon37 there; right?38 A Yes.39 Q And if you look in your report at page 33 --40 paragraph 33 he's relied upon there?

41 A Yes.42 Q And I think at paragraph 36 he's relied upon?43 A Yes.44 Q And it doesn't matter if he's -- if this is45 scholarly or peer reviewed, as I understand your46 evidence, because it's a book and not an article;47 is that fair?


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1 A That is fair.2 Q All right. So you do rely on the Jeffs book?3 A Yes.4 Q And have you read it?5 A Yes.6 Q And in this book one of his chapters, chapter 25,7 "Get Better," it's all about being treated by8 Dr. Larry Beall; do you recall that?9 A Not in detail, no.10 Q Well, do you recall it at all?11 A Not very well, no.12 Q And do you know who Dr. Beall is?13 A No.

14 Q And do you know that he's testified here?15 A No.16 Q Then you don't know what he said about whether he17 treated Mr. Jeffs?18 A No.19 Q All right. Now, let's turn again to the report,20 your report, because you -- as I hear your21 testimony and see the material here, you appear to22 link the incidence of polygyny to a widespread23 variety of phenomena or events. I mean, i.e.24 birth rates, rates of education and all those25 kinds of things. Do I follow it right?26 A Yes. So I'm looking at those things as dependent27 variables.28 Q Yes. And the way you put it to His Lordship29 yesterday and this morning was that polygyny is30 the independent variable. Is that what you said?31 A Yes.32 Q And you said both this morning and yesterday that33 means it's the cause?34 A As in the statistical report that I show it has a35 very strong correlation at a statistically36 significant level to the dependent variables I've37 delineated.38 Q All right. So let's just try and nail it down if39 we can. And I realize this is a difficult sphere40 of expertise, but you have said at least twice

41 that polygyny is an independent variable and you42 define and equate an independent variable with43 cause, was causative, with being a cause. Do you44 remember saying that?45 A What I said was that it was a simplistic way to46 describe the relationship between independent and47 dependent variables and there were qualifications


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1 your testimony yesterday was "this became the2 independent variable"?3 A Yes.4 Q Okay. And my note went on, i.e. this became the5 cause. I mean, "i.e." is my note. But you will6 stand by that. This is your basis for your7 opinion as to the causative part of your various8 conclusions, this Exhibit 117?9 A I would call it the independent variable.10 Q Very well. And when you say "independent11 variable" that's the thing you talked about a

12 cause a minute ago?13 A You keep conflating those things and as a social14 scientist I have a real difficulty with that. I15 don't see them as the same.16 Q Well, if they're not let's get that squared away17 because I don't know what to say in final argument18 about what your evidence is offering the court19 until we get that squared away.20 A Okay.21 Q Now, are you saying that this Exhibit 117, you22 said it became the independent variable?23 A Yeah, that's right.24 Q And earlier you've said that the independent25 variable was the cause and then all these bad26 things were the effect. Do you remember that?27 A What I was -- as I mentioned earlier I was saying28 that that's a simplistic understanding of the29 relationship between independent variable and30 dependent variable and I was trying to provide a31 simplistic explanation of an independent variable32 and dependent variable. But as I described33 yesterday in my testimony the only way to prove34 causation is with experimentation.35 Q Right.36 A And we can't do that because that's unethical. So37 short of that we engage in large end statistical38 analysis which provides for the correlation

39 between independent variables and dependent40 variables which can provide something that, let's41 say for example, passes a burden of proof, that42 it's extremely unlikely that these relations would43 emerge by chance.44 But as a social scientist who is an45 experimentalist I cannot claim cause short of an46 experiment that in this case I would consider47 unethical to be undertaken.


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1 Q Right. So to be blunt about this I'm going to2 essentially give you the choice; all right?3 Either -- either you are asking the court to4 conclude, because as you said earlier the court5 will conclude what it choses to?6 A Absolutely.7 Q But the take-away you want, what you're asking the8 court to conclude is that polygyny causes these9 bad things. Are you or are you not asking the10 court to conclude that?11 A I think that that's up to the court to decide.12 Q It is -- of course it's up to the court. Is that13 the take-away you want the court to have? Do you

14 want the court to conclude that polygyny causes15 these bad things? If you don't, our16 cross-examination is much, much, much, much17 shorter.18 A I believe that my role is not to be an advocate19 for the court to decide one way or another, but to20 provide information to the court about the21 statistical analysis I provided.22 MR. MACINTOSH: Now, My Lord, before the break could I23 get a couple of things marked?24 THE COURT: Yes.25 MR. MACINTOSH: The joining together of the website for26 the publisher and Oprah, I would just as soon as27 have that marked as one new exhibit if I could.28 THE COURT: Thank you. Exhibit.29 THE CLERK: 118, My Lord.3031 EXHIBIT 118: 14 pages; p/c; titled "Escape" dated32 on bottom right corner 14/12/2010; yellow computer33 highlighting through; referred to as Oprah34 Interview3536 MR. MACINTOSH: And the Canadian -- that portion of the37 website of the witness's website that I referenced38 earlier that had Canada in particular. That's39 from the WomanStats database which I handed up40 earlier in my cross and it is marked as page 1 of

41 26 on the front page and at the end it's four42 pages. 1, 2, 3 and 4. Could that in total be43 marked as an exhibit, please.44 THE COURT: Okay. It's attached to the code book.45 Wasn't that 118? Did I make a mistake?46 MR. MACINTOSH: I don't know, My Lord. I'm not47 certain.


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1 THE COURT: Oh, sorry, Oprah was marked.2 MR. MACINTOSH: Oprah -- Oprah is 118.3 THE COURT: I beg your pardon.4 MR. MACINTOSH: Well, I think I've helped confuse it in5 the sense of my sequencing. But this could be6 119. I was going to say this website -- would7 that be 119, Madam Registrar?8 THE CLERK: Yes.9 THE COURT: So the code book with the first page, code10 book table of contents, and we're going to call11 that 119?12 MR. MACINTOSH: Yes.13 THE COURT: Thank you.

1415 EXHIBIT 119: 9 pages; p/c; titled "Codebook Table16 of Contents" dated on bottom right corner of page17 11/12/20101819 MR. MACINTOSH: Thank you, My Lord, and 118 would be20 Oprah. And if it works it's a good time for the21 break.22 THE COURT: Sure. Professor McDermott, you're under23 cross-examination so please don't discuss your24 evidence with anyone.2526 (WITNESS STOOD DOWN)27 (MORNING RECESS)2829 THE CLERK: Order in court.3031 ROSE MCDERMOTT, a witness32 for the AG of Canada,33 recalled.3435 THE COURT: Mr. Macintosh.3637 CROSS-EXAMINATION BY MR. MACINTOSH: (Continued)38 Q Professor, in your report as it was delivered,39 that is, the filed report from July 2010,40 Exhibit 41, that did not appear to indicate the --

41 which are the more polygynous and less polygynous42 countries. Do I read that correctly?43 A Yes, that's in what I think you referred to as44 Exhibit.45 Q 117?46 A 117, yes.47 Q And 117 was in response to -- by the AG Canada


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1 from our firm asking for that information because2 it seemed of central importance. Why would that3 not have been in your filed report?4 A I forgot.5 Q Now, when you spoke about this Exhibit 1176 yesterday you said, as I took my notes at least,7 this is the only study done where polygyny is an8 independent variable?9 A Not the only one; the largest one.10 Q I thought you said the only one where it was an11 independent variable. I thought you said there12 were other studies were polygyny was a dependent13 variable?

14 A That's correct.15 Q All right. And so this is the first study, as I16 understand your evidence, where polygamy has been17 the independent variable?18 A In a statistical analysis.19 Q And when we look at the definitions on the front20 page of Exhibit 117, zero -- it's a scale of zero21 to four; right?22 A Yes.23 Q And the higher the number the more polygyny?24 A Yes.25 Q And so zero polygamy is illegal and extremely26 rare, and then number 1, polygamy is illegal and27 the law is enforced but multiple simultaneous28 co-habitations especially outside the bounds of29 formal marriage are not uncommon. And for me that30 was somewhat contradictory, and can you tell us31 what you mean when you say the law is enforced32 but -- and it's illegal but it's not uncommon to33 have it?34 A So meaning it's illegal, the law is enforced, but35 there are circumstances where there may be36 multiple simultaneous co-habitations short of37 marriage. So relationships that aren't legally38 marriage. So this can characterize situations,39 for example, that are often common in the40 Caribbean where someone will get married and then

41 get married again and get married again and not42 necessarily get divorced from the previous43 partners.44 Q So when I read it, it says:4546 Polygyny is illegal and the law is enforced,47 but multiple simultaneous co-habitations --


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12 And then you say:34 -- especially outside the bounds of formal5 marriage are not uncommon.67 So I thought you were saying sometimes it's8 outside the bounds of formal marriage; sometimes9 it's inside the bounds?10 A That's correct.11 Q All right. And so although it's enforced it's not12 uncommon that people are doing it anyway?13 A Right. So enforcement in any legal structure is

14 never perfect.15 Q And you've got Canada as a one; right?16 A Right.17 Q And I asked a witness this the other day, but have18 you studied the history of enforcement in Canada19 on polygyny?20 A Only peripherally.21 Q Okay. And what did your peripheral study tell22 you?23 A That it has uncommonly been persecuted and that it24 has not successfully been persecuted.25 Q That it has, what, been persecuted?26 A Uncommonly.27 Q Rarely?28 A Yes.29 Q All right. And my own instruction and research to30 some extent on my own and advice others give me is31 it's been used once 111 years ago or so in a32 polygyny situation. Do you know anything33 different from that?34 A No.35 Q So when you've told the court in Exhibit 117 that36 all the -- the countries listed under your37 number 1 that the law is enforced, given what we38 have just heard about Canada how do you say that?39 How did you tell the court that the law is40 enforced?

41 A I'm not sure I understand your question.42 Q Well, you're advising the court that the number 143 countries the law is enforced, and as far as you44 know it's enforced no more or no less than it is45 in Canada. Canada is one of the number 146 countries?47 A Yes, Canada is.


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1 Q And in number two in your definitions on the first2 page Exhibit 117 you say polygyny -- these are3 countries where polygyny is generally illegal and4 this is enforced except it is explicitly deemed5 legal for certain minority, ethnic or religious6 enclaves, but typically represents less than7 5 percent of women, and the United States is one8 of your number 2s?9 A Yes.10 Q And how do you mean it's generally illegal in the11 United States? I thought it was all illegal.12 A With any omnibus category which is what these13 scales are you're incorporating a number of

14 different countries in each category and so each15 aspect of each category is not 100 percent16 reflective of each instance within the category.17 Q Right.18 A It doesn't mean every country that's a 1 it's19 illegal, the law is enforced and these things20 happen. It just means that that's the most21 representative characteristic of those countries.22 Q Right.23 A So in the United States the number of women in24 such marriages is, you know, slightly less than25 5 percent. It is generally illegal. It's26 generally enforced but there are certainly27 instances and communities where it exists in the28 United States within ethnic or religious enclaves29 and that's why it's a 2 in the United States.30 Q So with your different adjectives for each of your31 definitions in 2 it's generally illegal, that32 means some places it is, some places it isn't?33 A Generally illegal meaning some of the countries34 where it's a 2 it's illegal, and some of the35 countries where it's a 2 it may be illegal. But36 as I testified yesterday when there's a37 contradiction between prevalence and legality we38 privileged prevalence in our characterization of39 the category.40 Q I heard you say that. So to come back to the

41 question, in item 2 when you say polygyny is42 generally illegal as I hear you, you're saying43 some of the 2s it's illegal and some of them it44 isn't?45 A That's right.46 Q All right.47 A That's exactly right.


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1 Q Now, as I understand what you do in the body of2 your report then you start -- you take the stats3 for these countries. You've got the zero4 countries, that's no polygyny and then you've got5 the 1s which is a little bit of polygyny, and then6 the 2s a bit more, and 3s a bit more and 4s the7 most?8 A That's correct.9 Q And so then you extrapolate, or maybe that's not10 the right word, but in your report at11 paragraph 82, for example, you start on the12 educational part rates of -- page 14, paragraph13 82, rates of primary, secondary education for male

14 and female children; right?15 A Yes.16 Q And with that and every other one of these things17 you study, like you go to HIV on the next page and18 mortality and age of marriage on the next, and for19 every one of these you've asked -- you have20 invited the court, I think, to conclude, but let's21 not get into that semantic, you have put forward22 the proposition that the more polygyny the more23 there is of something that's bad, like less24 primary and secondary education. Isn't that25 generally a true statement?26 A Those are the results of the statistical analysis,27 yes.28 Q All right. So the conclusion was based on what29 the statistics told you?30 A Yes.31 Q All right.32 A The data tells you the direction of the33 relationship.34 Q All right. So let's look at that. So in35 Exhibit 117 I -- you know, I -- it was interesting36 obviously to look at these various countries, and37 the first page is all zero polygamy -- polygyny or38 polygamy, I guess. Certainly polygyny. And that39 carries on towards the top of the second page?40 A That's correct.

41 Q And so on the first page the countries that for42 perhaps apparent reasons caught my eye, but East43 Timor, Mongolia, Brunei. Brunei, which is where?44 A Brunei is in Africa, I think.45 Q Or is it -- I wonder if it's between Vietnam and46 Indonesia?47 A It could be. I don't remember.


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1 you to do, because what regression does is it2 allows you to use variance to traction the3 relationship between one variable and another4 variable. And so while there may be on any given5 characteristic an additional variable that may6 help influence the outcome what you're basically7 saying is that if you look across all the8 categories of variance, whether it's, you know,9 Africa, North America, Europe, whatever, as that10 category of polygyny changes the other category of11 education also changes. Now, as we discussed12 there are other potential variables that it can13 influence as well, but we know statistically

14 significantly that there is this correlation15 across categories that relates primary and16 secondary education to rates of polygyny.17 Q So let's back up and I will put the question again18 and see if I get the answer I recall you saying.19 The countries I named on the page 1 with the20 zeros I was speculating, suggesting in fact, that21 their levels of education wouldn't be as good as22 in the UK and Canada and Belgium, and your answer23 I think was along the lines, well, of course, I'm24 correct.25 A On the categories of education I would assume that26 that's right, yes.27 Q All right. So you assume it's right, and so you28 would assume that in the examples I've looked at29 where there's less polygyny there's worse30 education?31 A The examples that you provided of the United32 Kingdom and Belgium and Canada versus North Korea33 and El Salvador and Burundi, yes.34 Q All right. And I kept reading the data that35 you've provided to us and I went to the 2s, the36 two countries, and on this same sceptical sort of37 approach I was taking I saw that in the 2s on38 the -- we see the United States?39 A Yes.40 Q And we see Israel and we see Singapore?

41 A Yes.42 Q And I've speculated that the level of education in43 Israel and United States and Singapore is better44 generally speaking than it is in the countries I45 named, East Timor, Brunei, Guyana, Sri Lanka,46 Burundi and the Ivory Coast, and wouldn't you47 accept that statement as being probably correct?


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1 A Yes, although I wouldn't say that it's better than2 all the countries in category 1, namely Canada,3 Belgium and the other country you mentioned.4 Q I readily agree. I mean, I wouldn't want to get5 into an education contest between Canada and6 Belgium and Israel and Singapore.7 So we're in agreement then that once again8 when we take your thesis, which is the less9 polygyny the better the education. Certainly in10 the examples that we've tossed out so far the data11 doesn't support that; correct?12 A Doesn't support what?13 Q Doesn't support the conclusion that the less

14 polygyny means the better the education.15 Countries we've discussed being the --16 A Oh, yes, yes.17 Q Right? So the countries we've discussed so far18 would lead to the opposite conclusion; right?19 A The opposite conclusion?20 Q Yes, yes. Because in the examples we have so far21 where you tell us there's more polygyny there is22 actually better education; right?23 A Right. But part of my concern is that when you24 use anecdotal cases you're not actually25 tractioning all the data, and one of the reasons26 that you include 170 countries instead of half a27 dozen is because you're trying to in regression28 analysis leverage all of that data to look at the29 meaningful relationship between variables.30 Q Right. And so, I mean, you're saying anecdotal31 data, and with great respect I'm using the data32 that you gave when we requested it. And, I mean,33 that's not anecdotal data is?34 A The 170 isn't but the half a dozen that you've35 tossed out actually are.36 Q Oh, they're anecdotal, are they?37 A Well, they're not anecdotal but they are single38 examples of a larger data set.39 Q How about this. Maybe they tell you that there's40 some other factor causing bad education besides

41 polygyny?42 A Oh, sure.43 Q Right. And so maybe a war, a civil war on the44 Ivory Coast is bad for education for kids; right?45 A That's definitely possible.46 Q And maybe a famine in any country has been47 burdened with that in sub-Saharan Africa, maybe


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1 that would impact adversely on elementary2 education; fair enough?3 A Yes.4 Q And maybe drought would do the same thing?5 A Yes.6 Q And post-colonial Africa in many senses is a7 disaster. You've got four kinds of wars, I think.8 You've religious wars, you've got tribal wars,9 you've got inter-nation wars, and you've just got10 civil wars that are even more complex anyway. All11 of those are going to hurt education; right?12 A They could, yes.13 Q And in order to -- let's see if we can do this;

14 maybe we can't. I can take every one of your 1015 or 11 things that, you know, life expectancy is a16 good example. Life expectancy could be shortened17 by wars; right?18 A Yes.19 Q And life expectancy can be shortened by AIDS;20 right?21 A Yes.22 Q And life expectancy can be shortened by drought;23 right?24 A Yes.25 Q And it can be shortened by famine?26 A Yes.27 Q All right. Now, so this test you've done the28 first time ever, as far as we know, that polygyny29 has been used as the -- I was going to say cause.30 What is the right word?31 A Independent variable.32 Q Right. Okay. So you're readily accepting that33 many, many other factors besides GDP can lead to34 the conclusions that your report asks us to come35 to?36 A So there are given other individual variables that37 can influence any of the dependent variables I38 examined?39 Q Right.40 A And one of the important characteristics is that

41 there are very few variables that would be42 expected to affect the comprehensive totality of43 all the variables that I examined, short of GDP.44 Q Right. In your data on your computer have you45 made adjustments for, for example, the Ivory46 Coast, have you made adjustments for the impact of47 war?


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1 A No.2 Q Now, one of your many attributes of polygyny is3 higher defence budgets?4 A Yes.5 Q And just so His Lordship has it, at page 27 of6 your report you have your conclusory statements;7 right?8 A Yes.9 Q And at page 2 at paragraph 157 you advise that a10 polygynous state spends more on average on11 defence, and let's not get into the debate about12 whether guns or butter are better for an economy13 at a different time or for a nation, but let's

14 just take your proposition. Polygynous states15 spends more on average on defence, and lest there16 be any question about that being bad, you go on to17 say, leaving fewer potential resources available18 for building domestic infrastructure including19 projects devoted to health and education. Do you20 see that statement?21 A Yes.22 Q And that's your opinion, is it?23 A Yes.24 Q And that's your evidence; right?25 A And it's what I believe that the statistical26 analysis supports, yes.27 Q Now, this part of your analysis it begins, this28 defence and polygyny, begins on page 21 in your29 report where we get to defence expenditures. Do I30 read that right?31 A Yes.32 Q And I think the defence part starts at the top of33 the next page where you say the same -- you make34 the same point. Page 22:3536 States with higher rates of polygyny spend37 more money per capita on defence,38 particularly on arms expenditures for39 weapons.40

41 And are you saying that's causal, by the way? Are42 you saying polygyny leads to higher defence43 budgets per capita?44 A I am saying that there's a statistically45 significant correlation between polygyny and46 defence spending.47 Q All right. Well, correlation and cause are two


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1 different animals in your line of work, aren't2 they?3 A Yes.4 Q And so are you saying it's causative or are you5 just saying there's a correlation. You get a lot6 of polygyny for a lot of defence budget?7 A This goes back to our conversation prior to the8 break where I believe that causality can only be9 proved with experimental data, and I don't have10 experimental data on this. So short of11 experimental data large end quantitative analysis12 provides the best traction to examine these13 relationships and form the foundation of causal

14 inference, which would suggest that the15 probability that these relationships are not16 causal is true is extremely rare.17 Q So this theory of polygyny and defence budgets, as18 I see your evidence I go -- your report, I go to19 page 1, paragraph 9. I think that's the start of20 it in your report. You say you've studied21 polygyny for ten years?22 A Yes.23 Q And your study of polygyny began it seems as a24 result of 911 attacks?25 A My involvement in polygyny research came as a26 result of a series of hypotheses that Richard27 Wrangham generated subsequent to that time, yes.28 Q All right. Well, let's just look at what you29 said. "We began studying this topic," and what's30 that, the topic of polygyny?31 A The topic of factors that influence male32 aggression.33 Q All right. So you say, I've studied polygyny for34 ten years with this man at Harvard. Then you say,35 we began studying this topic after the 91136 attacks, and because people became interested in37 the source of aggression toward western38 governments. And as I heard you yesterday, you39 said Al Gore -- so this is after he'd lost, of40 course, in the famous or infamous vote in 2000;

41 right?42 A Yes.43 Q So he's not president?44 A Yeah.45 Q And so after 911 as I heard you he said he46 closeted himself at Harvard with 12 senior47 faculty?


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1 A Yes.2 Q And this was to figure out why America was3 invaded, basically?4 A What precipitated the attacks of 911, yeah.5 Q Right. And you said there were 12 senior faculty?6 A Yes.7 Q And you said yesterday most of the people in the8 room did not find this a particularly compelling9 theory?10 A Yes. Carol Gilligan was the only one who endorsed11 it.12 Q All right. So there was 12 senior people at13 Harvard in the room who don't think much of this

14 theory?15 A No, there's 10 senior people who didn't agree.16 Richard and Carol were two of them.17 Q Richard and Carol, okay. And the other ten18 weren't too big on it?19 A That's right.20 Q And because -- is this a theory that polygyny is21 partly responsible for 911?22 A No.23 Q Well, your report says the project was to have a24 specific goal of compiling systematic data on25 polygyny in order to test this hypothesis?26 A The hypothesis related to potential sources of27 male aggression.28 Q Male aggression?29 A There were lots of other things that we were30 looking at as well.31 Q And so you're not advancing it as a thesis as one32 of the direct or indirect causes of 911?33 A No.34 Q And if I read that from your report it would be a35 mistake on my part?36 A Or perhaps I could have used more precise37 language.38 Q All right. And so -- but you're saying polygyny39 what, just -- I guess your report says it causes40 male aggression? Is that what you're saying?

41 A Yes.42 Q And so in your defence analysis at paragraph 13043 you carry on and you say, page 22, paragraph 130,44 and this is on the polygyny defence budget link,45 and you say paragraph 130: "I begin with defence46 expenditures." Right?47 A Yes.


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1 Q And what you did is you went to a data bank, the2 Stockholm International Peace Research Institute?3 A Yes.4 Q Acronym SIPRI, and they have data on countries'5 defence expenditures; is that right?6 A Yes.7 Q And so you --8 A And a lot of other data too, not just on defence9 expenditures.10 Q But that's what you looked at?11 A Yes.12 Q Fair enough. So you saw how much a country spends13 on defence and according to the data you had for

14 which countries are in the 4 category in your15 Exhibit 117 and did you say oh, well, then16 polygyny causes higher defence budgets?17 A Sorry?18 Q So you had Exhibit 117, which is countries with a19 number 4 for polygyny?20 A Right.21 Q And you go to SIPRI, S-I-P-R-I; right?22 A Yeah.23 Q And you find out that a country spends X dollars24 per capita on defence?25 A Oh, no, that's not how you do regression at all.26 Q No?27 A You have a database that lists all the countries 028 through 4 on polygyny, and then you enter in the29 data on how much each country spends on weapons in30 a completely different category, you know, a31 completely different column, and then you develop32 a mathematical model, and I can write the model up33 on the board for you, that has an intercept and34 specific correlation coefficients and then you run35 a statistical analysis comparing each country36 according to their category of polygyny and how37 much money they spend on defence. You never,38 ever, ever select on a dependent variable. That's39 a complete violation of statistical analysis.40 Q Okay. So --

41 A You would never, ever, ever do that.42 Q So you would never ever use the dependent43 variable?44 A You would never select on the dependent variable45 in a statistical analysis.46 Q Right. And is the dependent variable in your47 statistical analysis -- what is it? The defence


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1 budget?2 A Yes.3 Q So I guess you're saying you start off with the4 independent variable?5 A That's right.6 Q And the independent variable is your chart7 Exhibit 117 for countries being --8 A It's the categories of polygyny, that's right.9 Q All right. So okay. So over here we've got the10 countries that are more and less polygynous;11 right?12 A Well, you have all the countries. 170 countries.13 Q In your Exhibit 117?

14 A Yes.15 Q And then over here you've got SIPRI data?16 A Yes.17 Q And SIPRI data tells you how much a country spends18 on guns and so on?19 A Yes.20 Q And I couldn't see in the report that there was21 any other data.22 A Any other data?23 Q Right. To get to your conclusion that polygyny24 increases defence budgets?25 A That's how you do the analysis. You do the26 analysis between the effect of the independent27 variable on the dependent variable, so you look at28 the effect of polygyny on defence expenditures,29 but we always controlled for GDP US. So the other30 variable that's involved is the degree of wealth.31 It's the GDP for each country as measured in US32 dollars. That's the third variable that's33 incorporated in that analysis.34 Q All right.35 A And that's true for every variable that we looked36 at.37 Q All right. So you got three things in your list?38 A That's right.39 Q Three datas?40 A Right.

41 Q You've got your number zero to 4?42 A Yes.43 Q For polygyny, and you got SIPRI for how much a44 country spends on --45 A That's right.46 Q And then you've got the GDP.47 A Yes, that's correct.


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47 here.


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46Rose McDermott (for AG of Canada)Cross-exam by Ms. Trask

1 Q Great. That's very helpful. And I notice there2 are numbers on the vertical here that range3 between 40 and 140 or 40 and 150, depending on4 which figure we're on, and I was wondering if you5 could explain to us what those numbers are.6 A Those numbers are in the tens of thousands, so I7 think it relates to like 40,000 to 140,000 and8 they're absolute numbers of enrolment in a given9 country, I think. But it's weighted by population10 average and so it's a function of the per capita.11 The reason it's not like 40,000 is because it's a12 function of the -- the United States has a bigger13 population than Canada and so it's a function --

14 it's a logged function of the overall population15 enrolment.16 Q Right. Okay. Thank you. And you have different17 figures here for primary and secondary education?18 A Yes.19 Q And I was assuming that primary is kindergarten to20 Grade 7 and secondary is Grade 8 through Grade 12?21 A Grade 8 is included in primary education.22 Q Grade 8 is included in primary education.23 A So our primary education is actually 1 through 824 because there's many countries where there is no25 such thing as kindergarten, and secondary26 education what in the United States would be27 called high school, so it would be 9 through 12.28 Q And if someone -- if a student participates in29 part of their education -- part of their primary30 education or part of their secondary education but31 doesn't complete it is that reflected in the data?32 A Yes. So if they're enrolled but they don't33 complete it that constitutes enrolment. So for34 example, a girl that is enrolled through 7th grade35 but doesn't complete 8th grade would be included36 in the data for primary enrolment but not in the37 data for secondary enrolment.38 Q And if they are enrolled in secondary education39 but don't complete they would still be included in40 the data?

41 A Yes, this is a very conservative estimate.42 MS. TRASK: Thank you very much. Those are all my43 questions.44 THE COURT: Any other parties cross-examining? Thank45 you. Ms. Wray?46 MS. WRAY: No.47 THE COURT: Thank you. Professor McDermott, thank you


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1 very much. You're excused.2 THE WITNESS: Thank you.34 (WITNESS EXCUSED)56 THE COURT: Now, that's a little quicker than I7 realized. Have we anything set for this8 afternoon?9 MR. JONES: My Lord, we have still I think nine of our10 videos to work through and I believe there is one11 or two perhaps on the other side. Some of them12 are quite short. I would propose that we perhaps13 play one and possibly two of those this afternoon

14 because we are going to be tight for scheduling if15 we don't take advantage of these.16 THE COURT: Let's do that.17 MR. JONES: We'll return at 2 o'clock, My Lord?18 THE COURT: Yes, but while we're doing that let me just19 say this before we break. This is our last20 sitting before the Christmas break. We've made I21 think tremendous progress in developing an22 unparalleled evidentiary record on the issues that23 we're struggling with and we are all engaged in an24 extraordinary exercise. It seems to me that's25 been made plain in the last few weeks.26 The progress to date is a credit to all27 counsel. The level of lawyering has been28 extremely high. I thank you. It has well been29 demonstrated or marked by the high degree of30 civility between counsel and our progress to date31 reflects that as well. So thank you for that.32 MR. MACINTOSH: Thank you, My Lord.33 THE COURT: I won't comment on the excellent evidence34 we have received from the various witnesses35 because I think I do that later in the proceeding.36 Thank you very much.37 THE CLERK: Order in court. Court is adjourned until38 2:00 p.m.3940 (NOON RECESS)

4142 THE CLERK: Order in court. My Lord, Freya Zaltz for43 the Attorney General of British Columbia. This44 afternoon we will be showing the video affidavit45 of Howard Mackert. The length in total is 1 hour46 and 22 minutes, so we propose to show just this47 one and to stop for a break partway through if


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1 that pleases Your Lordship.2 THE COURT: Okay. Sorry stop for the break or not?3 MS. ZALTZ: We will stop for a break partway through.4 THE COURT: Yes. Thank you.5 MR. REIMER: My Lord, if I might address one thing just6 before we start the video. There have been some7 discussions about dates for final arguments in8 this matter and I think the last few days ago it9 was proposed that we schedule for the first two10 weeks in April, so the week of April 4th and the11 week of April the 11th. I have had discussions12 with various parties including the amicus.13 Everybody seems to be in agreement to that but I

14 understand Your Lordship is unavailable the first15 Thursday, Friday. Is that --16 THE COURT: It will be the Wednesday. Let's see. It17 will be the Wednesday, Thursday, Friday.18 MR. REIMER: So those three days, so two days that week19 and then the next full week. Okay. I'm wondering20 if that is enough time because that would give us21 only seven days.22 THE COURT: We might go into the third week of April23 then.24 MR. REIMER: Except I think the difficulty is then I25 think Mr. Macintosh is starting a trial.26 MR. DICKSON: It get a little tight for us, My Lord.27 We have a three-week trial starting April 26th.28 That's our only concern. So --29 THE COURT: Well, what about starting in the week of30 the 28th of March?31 MR. REIMER: We had -- that is the other option. I32 know Mr. Samuels had some conflict that week. I33 think he was the only person I was aware of that34 we're trying to arrange the schedule.35 THE COURT: I believe those three days I'm in Ottawa.36 I'm flying and in Ottawa.37 MR. REIMER: Okay. Why don't we at this point at least38 if I can propose that we schedule it for those two39 weeks, the week of April 4th, so we have the first40 two days, the Monday and Tuesday, and then the

41 following week, and we may have to look for some42 dates either before that or after that. Is that43 agreeable to...44 MR. DICKSON: That's right. Before would be our45 preference, My Lord, or else we get into quite a46 conflict with our schedules.47 THE COURT: Right.


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49Howard Mackert (for AGBC)Video affidavit

1 MR. REIMER: I think, if it's possible then perhaps we2 could book actually all three of those weeks and3 we sort of start partway through that week of the4 28th depending on Mr. Samuels schedule. Perhaps5 that would be the other option.6 THE COURT: Okay. Let's book the 28th.7 MR. REIMER: Okay. And then as far as exchange of8 written arguments are concerned we've been having9 some discussion about how we propose to structure10 that and deadlines for that. I know we have not11 the come to the final agreement on that, so if we12 can table that for the time being we will continue13 those discussions and work out an appropriate

14 schedule.15 THE COURT: Good.1617 (VIDEO PLAYED)1819 MS. HORSMAN:20 Q Mr. Howard, I'm Karen Horsman and with me21 is Eva Ross, and we're both lawyers with22 the Ministry of the Attorney General and23 British Columbia, Canada, and you're24 Howard Mackert?25 A Yes.26 Q And we're sitting here today in your shop27 in Gig Harbor in Washington State in the28 USA?29 A M'mm-hmm.30 Q And it's Wednesday, June 16th, 2010?31 A M'mm-hmm.32 Q It looks like we're starting about 10 to33 7:00 in the evening. And, Howard, we34 have explained to you that in Canada35 we're having a reference into the36 constitutionality of our polygamy37 prohibition of the Criminal Code?38 A M'mm-hmm.39 Q And you kindly agreed to talk to us about40 some of your experiences growing up in a

41 polygamous community?42 A M'mm-hmm.43 Q And you understand that the video we're44 making is part of the evidence that the45 Attorney General may put before the46 court?47 A Yes.


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50Howard Mackert (for AGBC)Video affidavit

1 Q To assist the court in deciding the2 constitutional question?3 A Glad to help.4 Q So Howard, why don't you just start by5 telling us your experience, where you6 were born --7 A Okay.8 Q -- and what your family situation was.9 A Okay. I'm one of 27 children that my10 father fathered from

12-16 - 2010 Polygamy Reference Case Proceedings- Day 14

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