Affidavit # 1 ofErle Nichols Sworn July 7, 2010

No. S-097767 Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF:

1HE CONSTITUTIONAL QUESTION ACT, RS.B.C. 1996, C.68

AND IN THE MATTER OF:

1HE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

AND IN THE MATTER OF:

A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22, 2009 CONCERNING 1HE

CONSTITUTIONALITY OF S. 293 OF THE CRIMINAL CODE OF CANADA, RS.C. 1985, c. C-46

AFFIDAVIT

Ministry of Attorney General Legal Services Branch

1301 -865 Hornby Street VaDcouverBC V6Z2G3 TelephoDe: 604 (j(jQ-5476 Faesimile: 604 (j(jQ-(j797

Craig lODes Barrister and SoBcitor

Affidavit # 1 of Eric Nichols Sworn July:l, 2010

No. S-097767 Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF:

THE CONSTITUTIONAL QUESTION ACT, R.S.B.C. 1996, C.68

AND IN THE MATTER OF:

THE CANADIAN CHARTER OF RlGHTS AND FREEDOMS

AND IN THE MATTER OF:

A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22, 2009 CONCERNING THE

CONSTITUTIONALITY OF S. 293 OF THE CRIMINAL CODE OF CANADA, R.S.C. 1985, c. C-46

AFFIDAVIT

I, Eric Nichols, of the Office of the Attorney General for the State of Texas, in the City of Austin, Travis County, in the State of Texas, United States of America, MAKE OATH AND SAY THAT:

I. I am the Deputy Attorney General for Criminal Justice with the Texas Office of the Attorney General and as such, have personal knowledge of the matters hereinafter deposed to, save and except where stated to be based upon information and belief, and where so stated, I verily believe the same to be true.

2. I have been the lead prosecutor for the State of Texas in cases arising from criminal

conduct that occurred on the Yearning for Zion Ranch on various felony charges including sexual assault ofa child and bigamy. The State of Texas has also pursued a case for the offense of failure to report child abuse. Attached and marked as Exhibit "A" to my affidavit are copies of the grand jury indictments issued in Schleicher County, in the State of Texas, United States of America, in respect of these prosecutions. The Indictments are as follows:

a. Indictment No. 990, Warren Steed Jeffs ("Warren Jeffs"), charge of Sexual Assault ofa Child, Texas Penal Code Sec. 22.01 I (a)(2);

b. Indictment No. 991, Raymond Merril Jessop ("Raymond Jessop"), charge of Sexual Assault ofa Child, Texas Penal Code Sec. 22.011(a) (2);

c. Indictment No. 992, Allan Eugene Keate ("Allan Keate"), charge of Sexual Assault ofa Child, Texas Penal Code Sec. 22.01 I (a)(2);

d. Indictment No. 993, Michael Emack ("Michael Emack"), charge of Sexual Assault ofa child, Texas Penal Code Sec. 22.01 I (a)(2);

e. Indictment No. 994, Merril Leroy Jessop ("Leroy Jessop"), charge of Bigamy, Texas Penal Code Sec. 25.01;

f. Indictment No. 995, Leroy Jessop, charge of Sexual Assault of a child, Texas Penal Code Sec. 22.01 I (a)(2);

g. Indictment No. 996, Lloyd Hammond Barlow ("Lloyd Barlow"), charge of Failure to Report Child Abuse - Three Counts, Texas Family Code Sec. 261.109;

h. Indictment No. 997, Warren Jeffs, charge of Bigamy, Texas Penal Code Sec. 25.01;

1. Indictment No. 998, Michael Emack, charge of Bigamy, Texas Penal Code Sec. 25 .01;

J. Indictment No. 999, Raymond Jessop, charge of Bigamy, Texas Penal Code Sec. 25.01;

k. Indictment No. 1000, Lehi Barlow Jeffs NKJA Lehi Barlow Allred ("Lehi Jeffs"), charge of Sexual Assault of a Child, Texas Penal Code Sec. 22.011(a)(2), 22.011(f);

1. Indictment No. 1001, Lehi Jeffs, charge of Bigamy, Texas Penal Code Sec. 25 .01;

m. Indictment No.1 002, Abram Harker Jeffs ("Abram Jeffs"), charge of Sexual Assault ofa Child, Texas Penal Code Sec. 22.01 1 (a)(2), 22.011 (f);

n. Indictment No. 1003, Abram Jeffs, charge of Bigamy, Texas Penal Code Sec. 25.01;

o. Indictment No. 1004, Keith William Dutson, Jr. ("Keith Dutson"), charge of Sexual Assault of a Child, Texas Penal Code Sec. 22.011 (a) (2);

p. Indictment No. 1013, Wendell Loy Nielsen ("Wendell Nielsen"), charge of Bigamy, Texas Penal Code Sec. 25 .01;

q. Indictment No. 1014, Wendell Nielsen, charge of Bigamy, Texas Penal Code Sec. 25.01;

r. Indictment No. 1015, Wendell Nielsen, charge of Bigamy, Texas Penal Code Sec. 25.01;

s. Indictment No. 1016, Fredrick Merril Jessop ("Merril Jessop"), charge of Conducting a Ceremony Prohibited by Law, Texas Family Code Sec. 2.202(d);

t. Indictment No. 1017, Warren Jeffs, charge of Aggravated Sexual

Assault, Texas Penal Code Sec. 22.021 (a)(l)(A)(i);

u. Indictment No. 1018, Leroy Johnson Steed ("Leroy Steed"), charge of Bigamy - 2 counts, Texas Penal Code Sec. 25.0 I;

v. Indictment No. 1019, Leroy Steed, charge of Sexual Assault ofa Child, Texas Penal Code Sec. 22.01 I (a)(2), 22.01 I(t); and

w. Indictment No. 1020, Leroy Steed, charge of Tampering with Physical Evidence, Texas Penal Code Sec. 37.09

(collectively, the "Indictments").

3. Some of the evidence put before the juries that heard trials resulting from the Indictments was obtained during the execution of two search warrants at the YFZ Ranch, a 1691-acre ranch and improvements located near Eldorado, in Schleicher County, in the State of Texas, United States of America. Attached as Exhibit "B" to my affidavit are copies of Search and Arrest Warrants Nos. M-08-001-S, issued on April 3, 2008 and M-08-002-S, issued on April 6,2008 (collectively, the "Warrants").

4. Between May 13,2009 and May 16,2009, the 5 151 Judicial District Court of Schleicher County, Texas, conducted a hearing with respect to the legality of the Warrants. The Court dealt with a number of motions to suppress the evidence obtained during the execution of the Warrants. The applicants sought to quash the search warrants and have the evidence excluded on the basis of a number of grounds including constitutional grounds of improper search and seizure. These motions were consolidated and heard before the Court. The Court held that the motions to suppress should be denied. Attached as Exhibit "C" to my affidavit is a copy of the "Findings of Fact and Conclusions of Law" issued by the Court in respect of Cause No. 991. These Findings of Fact and Conclusions of Law are largely identical to those issued by the Court in respect of Cause Nos. 992, 993, 994, 995, 998, 999,1000,1001,1002, 1003,1004,1013,1014,1015,1016,1018,1019 and 1020.

5. Following the issuance ofthe Indictments, two people have pled nolo contendere to and been found guilty of the charges against them: Michael Emack and Lehi Jeffs. The legal effect of a plea of nolo contendere, as set out in the Texas Code of Criminal

Procedure, Article 27.02(5), "is the same as that of a plea of guilty, except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based". Four people have been convicted by juries ofthe charges against them: Raymond Jessop, Allan Keate, Leroy Jessop and Abram Jeffs.

Michael Emack

6. On January 22, 2010, Michael Emack pled nolo contendere to and was found guilty of the charge of Sexual Assault ofa Child, Texas Penal Code Sec. 22.01 1 (a)(2), as set out in Indictment No. 993. As Michael Emack pled nolo contendere there was jury trial. There was, however, a hearing before the Court in which the Court took evidence. At this hearing, the State entered as State Exhibit 1 documents the State would have proffered to a jury had there been a trial on guilt or innocence. Attached as Exhibit "D" to my affidavit is a copy of State's Exhibit 1 filed at the hearing.

7. The documents attached to this affidavit as Exhibit D contain records kept by the Fundamentalist Church of Jesus Christ of Latter-Day Saints (the "FLDS Church") at the YFZ Ranch. The documents included in Exhibit 1 are true copies of the original documents obtained from the YFZ Ranch, except where they have been redacted due to the Court's requirement that the Exhibits include only that information relevant to the prosecution. These records include "Personal Records", "One Family Group Records", "Family Group Sheets", "Marriage Records", "Dictation" Records of President Warren Jeffs, letters written to Warren Jeffs, and "Father's Family Information Sheets". The Personal Records document such things as parentage, gender, ordinances, special appointments, marriage and important events as serving missions, and priesthood appointments. The documents at Exhibit D confirm Michael Emack was born December 13, 1950 and entered into a "celestial marriage" with Ruleen Johnson Jessop Emack on August 5, 2004. Ruleen was born on December 6,1987 and was 16 when she married Michael Emack ,who was at that time 45. Ruleen was Michael Emack's fourth wife. Ruleen and Michael Emack's first child was born July 29,2005. My office prepared a family tree for Michael Emack which included photographs and information available at the time on his wives and children. This family tree is part of Exhibit D.

8. Michael Emack was sentenced to 7 years for the charge of sexual assault on a child.

Attached as Exhibit "E" to my affidavit is a copy of the Judgment of Conviction by Court - Waiver of Jury Trial in Case No. 993.

9. Michael Emack also pled nolo contendere to and was found guilty of the charge of Bigamy, Texas Penal Code Sec. 2S.01, as set out in Indictment No. 998. Attached as Exhibit "F" to my affidavit is a copy of State's Exhibit 1 filed in this hearing. Michael Emack received a sentence of7 years to be served concurrently with his 7-year sentence on the assault charge. Attached as Exhibit "G" to this affidavit is a copy of the Judgment of Conviction by Court - Waiver of Jury Trial in Case No 998.

Lehi Jeffs

10. On April IS, 2010, Lehi Jeffs pled nolo contendere to and was found guilty of the charges of Sexual Assault ofa child, Texas Penal Code Sec. 22.01 1 (a)(2), 22.01J(f), and Bigamy, Texas Penal Code Sec. 2S.01, as set out in Indictments No. 1000 and 1001. In this punishment hearing the State entered the State' s Exhibit 1. The documents in State Exhibit 1 confirm that Lehi Jeffs was born on March 6, 1979 and "married" Rachel Keate in a celestial marriage on October 3, 200S, when Rachel was IS years old. Rachel Keate was born on July 2S, 1990. Rachel Keate gave birth to Lehi Jeffs's child on June 11,2007. DNA evidence confirmed that Lehi Jeffs was the father. Attached as Exhibit "H" to this affidavit is a copy of State's Exhibit 1 filed at the hearing ("Lehi Jeffs Exhibit 1 ").

11. The documents included in Lehi Jeffs Exhibit 1 are true copies of the original documents obtained from the YFZ Ranch, except where they have been redacted due to the Court's requirement that exhibits include only that information relevant to the prosecution. Lehi Jeffs Exhibit 1 includes:

a. Personal Record of Lehi Jeffs, with the back of the Personal Record being a Marriage Record and a record of "Important Events";

b. Bishop's Record, showing Lehi Jeffs' natural parents;

c. "Record of President Warren Jeffs", dated Friday, April 30, 2004;

d. Marriage Record ofLehi Jeffs and Carol Darger, dated December 28,

2003;

e. "One Family Group Record" ofLehi Jeffs and Carol Darger;

f. Marriage Record of Lehi Jeffs and Rachel Keate, dated October 3,2005 ;

g. "Dictation on Tuesday, October 4,2005" Record of President Warren Jeffs;

h. Personal Record of Rachel Keate;

1. Marriage Record of Lehi Jeffs and Barbara Darger, dated July 13, 2001;

J. "One Family Group Record" of Lehi Jeffs and Barbara Darger Allred;

k. Letters from Lehi Jeffs to Warren Jeffs; and

I. "Father's Family Information Sheet - Bishop's Record".

12. These documents, including the Record of President Warren Jeffs dated April 30, 2004 at pages 571-72 indicate that Warren Jeffs reassigned the wives of Tom Barlow, Don Holm, and David Jeffs to other men. Lehi Jeffs's mother, Susanna Barlow, was one of these women.

13 . Lehi Jeffs was sentenced to 8 years for the sexual assault of a child and 8 years for bigamy to be served concurrently. Attached respectively as Exhibits "I" and "J" to this affidavit are true copies of the Judgments of Conviction by Court - Waiver of Jury Trial in Case Nos. 1000 and 1001: Lehi Jeffs.

Raymond Jessop

14. In November 2009, a trial was held in Case No. 991, on the charge of Sexual Assault of a child, Texas Penal Code Sec. 22.011 (a)(2) (the "Raymond Jessop Trial") . The State had a number of people testify and entered a number of exhibits at the Raymond Jessop Trial. Attached as Exhibit "K" to this affidavit are a copy of the State's Exhibit List and images of some of the State's Exhibits introduced into evidence at

the trial, which are marked (I have hand-written the exhibit numbers on those not otherwise marked). Exhibits 55 through 67B are photographs taken at the temple located at the YFZ Ranch, and of some of the evidence found there. Exhibits in the 103 and 104 series are photographs taken of and within a building located at the YFZ Ranch identified as the birthing center.

15. Attached as Exhibit "L" to this affidavit is a CD containing a copy of the transcript of the testimony of Rebecca Musser during the Raymond Jessop Trial.

16. Attached as Exhibit "M" to this affidavit is a CD containing a copy of the transcript of Carolyn Jessop during the Raymond Jessop Trial.

1 7. The evidence established that Raymond Jessop was born September 1, 1971. He was "married" to Janet Jeffs in a celestial marriage on August 12,2004. Janet Jeffs was born September 16,1988, and was 15 at the time of the "marriage". DNA evidence was used to confirm that Raymond Jessop was the father of a child born to Janet Jeffs in August 2005 .

18. A jury found Raymond Jessop guilty as charged and subsequently sentenced him to 10 years in prison. Attached as Exhibit "N" to this affidavit are copies of the Judgment of Conviction by Jury in Raymond Jessop Trial, and two "Charges of the Court" to the Jury.

Allan Keate

19. In December, 2009, a trial was held in Case No. 992, Allan Keate, on the charge of Sexual Assault of a Child (the "Allan Keate Trial"). Attached as Exhibit "0" to this affidavit are a copy of the State's Exhibit List and images of some of the State's Exhibits introduced into evidence at the trial, which are marked (I have hand-written the exhibit numbers on those not otherwise marked).

20. The evidence established that Allan Keate was born May 12, 1952. He was married to Merilyn Barlow in a celestial marriage on May 5, 2005. Merilyn Barlow was born January 7,1990 and was 15 at the time of the marriage. DNA evidence was used to confirm that Allan Keate was the father of a child born to Merilyn Barlow in

December 2006.

21. A jury found Allan Keate guilty as charged and subsequently sentenced him to 33 years in prison. Attached as Exhibit "P" to this affidavit are copies of the Judgment of Conviction by Jury in respect of the Allan Keate trial, the Charge ofthe Court and the verdicts of the jury.

Leroy Jessop

22. In March, 2010, a trial was in Case No. 992, Leroy Jessop, on the charge of Sexual Assault of a Child (the "Leroy Jessop Trial"). Attached as Exhibit "Q" to this affidavit are a copy of the State's Exhibit List and images of some of the State 's Exhibits introduced into evidence at the trial, which are marked (I have hand-written the exhibit numbers on those not otherwise marked) .

23. Attached as Exhibit "R" to this affidavit is a CD containing a copy of the transcript of the testimony of Rebecca Musser during the Leroy Jessop Trial.

24. The evidence established that Leroy Jessop was born November 28, 1974. He was "married" to LeAnn Jeffs also known as LeAnn Nielsen ("LeAnn Jeffs"), in a celestial marriage on July 27, 2006. LeAnn Jeffs was born March 24, 1991, and was IS at the time of the "marriage". DNA evidence was used to confirm that Leroy Jessop was the father of a child born to LeAnn Jeffs.

25. A jury of his peers found Leroy Jessop guilty as charged and subsequently sentenced him to 75 years in prison. Attached as Exhibit "s" to this affidavit are copies of the Judgment of Conviction by Jury in respect of the Leroy Jessop trial, dated March 19, 2010 and two verdicts of the Jury.

Abram Jeffs

26. In June, 2010, a trial was held in Case No. 1002, Abram Jeffs on the charge of Sexual Assault of a Child (the "Abram Jeffs Trial"). Attached as Exhibit "T" to this affidavit is a copy of the State's Exhibit List and images of some of the State's Exhibits introduced into evidence at the trial, which are marked (my colleague has hand-

written the exhibit numbers on those not otherwise marked).

27. The evidence established that Abram Jeffs was born May 19, 1971. He was married to Suzanne Johnson in a celestial marriage on October 5, 2005 . Suzanne Johnson was born November 13, 1990 and was 14 at the time of the marriage. DNA evidence was used to confirm that Abram Jeffs was the father of a child born to Suzanne Johnson.

28. A jury found Abram Jeffs guilty as charged and subsequently sentenced him to 17 years in prison. Attached as Exhibit "U" to this affidavit are copies of the Judgment of Conviction by Jury in respect of the Abram Jeffs trial, dated June 23, 2010 and two verdicts of the jury.

Outstanding Trials

29. The foIIowing trials are scheduled to proceed in the faII and winter of2010:

a. WendeII Nielsen on charges of Bigamy (Case Nos. 1013, 1014 and lOIS), September 7,2010;

b. Merril Jessop on a charge of Conducting a Ceremony Prohibited by Law (Case No. 1016), October 12, 2010. It is aIIeged that Merril Jessop conducted an unlawful marriage ceremony in which a minor whose marriage was prohibited by law was "married" to Warren Steed Jeffs;

c. Leroy Steed on charges of sexual assault of a child (Indictment No. 1019), December 6, 20 I O.

30. Warren Jeffs is currently serving time in Utah. He is charged in Texas with Sexual Assault of a Child (Case No. 990), Bigamy (Case No. 997), and Aggravated Sexual Assault of a Child (Case No. 1017). These matters are not yet scheduled for trial.

3 I . Trial dates have not been scheduled for the foIIowing matters:

a. Raymond Jessop, charged with Bigamy (Case No. 999);

b. Leroy Jessop charged with Bigamy (Case No. 994);

c. Keith Dutson Jr., charged with Sexual Assault of a Child (Case No. 1004); and

d. Leroy Steed, charged with Bigamy (Case No. 1018), and Tampering with Physical Evidence (Case No. 1020).

SWORN BEFORE ME at the City of Eldorado, Schleicher County, State of Texas, United States of America, this I day of July, 2010.

A Commissioner for taking Affidavits for British Columbia

Eval. Ross Banister and Solicitor

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