02 09 11transcript Day32

1
Edward Vanderboom (for AGBC)
1 February 9, 2011
2 Vancouver, B.C.
3
4 (DAY 32)
5 (PROCEEDINGS COMMENCED AT 10:00 A.M.)
6
7 THE CLERK: Order in court. In the Supreme Court of
8 British Columbia at Vancouver, this 9th day of
9 February, 2011, recalling the matter concerning
10 the constitutionality of section 293 of the
11 Criminal Code, My Lord.
12
13 EDWARD VANDERBOOM, a
14 witness for the AGBC,
15 recalled.
16
17 MR. OLTHUIS: My Lord, I would like to begin by
18 expressing my thanks for the indulgence on
19 scheduling, both to the Court and to my friends
20 and to the witness as well. I very much
21 appreciate it.
22 THE COURT: Thank you.
23 MR. OLTHUIS: My Lord, what we've done in preparation
24 for my cross-examination this morning is we've
25 prepared a binder which I have given to my friends
26 which contains a number of tabs and documents
27 behind each tab. I don't intend on taking the
28 witness to all of these. I will be taking him to
29 some of these reports and documents and asking
30 that they be marked as exhibits, but I'm in
31 Your Lordship's hands. At this stage I'm happy to
32 have this marked as an exhibit for identification
33 or I can simply use the binder as something of an
34 aid.
35 THE COURT: Well, let's mark it for identification so
36 that it's on the record and we'll play it by ear
37 as we go through the cross as to what has to be
38 marked as exhibit proper.
39 MR. OLTHUIS: Thank you, My Lord. I do then have one
40 copy for Your Lordship. One for Madam Registrar.
41 THE CLERK: This is Exhibit W for identification,
42 My Lord.
44
45 EXHIBIT W: 1 black 1.5" binder, untitled; 1 page
46 index; tabs 1 - 16; p/c; some documents
47 double-sided; p/c.
2
Cross-exam by Mr. Olthuis
1
2 MR. OLTHUIS: And I have one for the witness, as well.
3
4 CROSS-EXAMINATION BY MR. OLTHUIS:
5 Q Mr. Vanderboom, good morning. My name is Brent
6 Olthuis. I'm counsel for the Canadian Coalition
7 for the Rights of Children and the David Asper
8 Centre for Constitutional Rights. I just wanted
9 to ask you a few questions this morning, and
10 again, I thank you for making yourself available
11 this morning.
12 I wanted to begin, first of all, with
13 hopefully some clarification of some evidence that
14 you provided yesterday that I was left somewhat
15 unclear about. You discussed yesterday the
16 inspection process.
17 A Yes.
18 Q And you referred to matters that one reviews or
19 that committees review on external evaluation?
20 A Excuse me, start again. I which?
21 Q You referred to a series of criteria or matters
22 that an external evaluation committee would
23 review.
24 A Yes.
25 Q And then you referred also to a program
26 evaluation.
27 A Yes.
28 Q And I just wanted to be entirely clear. Am I
29 correct that that's a term that's unique to the
30 group 3 schools?
31 A Program evaluation? Well, a program evaluation is
32 used when a school wishes to add a grade. It
33 could be a group 1 or a group 2 school that has
34 never had a particular grade but wishes to add a
35 grade. It's not a group 3 portion of that school
36 at the moment, but it simply wishes to add a grade
37 and then at that time we would conduct a program
38 evaluation to determine whether the grade under
39 consideration was indeed meeting the requirements
40 for group 1 or group 2 classification.
41 Q But the evaluation itself, what you call a program
42 evaluation, in fact, comprises part of what would
43 be normally the education program review of a
44 group 1 or 2 school?
45 A Yes.
46 Q Thank you.
47 Mr. Vanderboom, you would agree that group 1
3
1 schools are required to establish evaluation

2 programs that demonstrate student progress in
3 human and social development and career
4 development?
5 A Yes.
6 Q And that's a requirement in a schedule to the
7 Independent Schools Act; correct?
8 A Yes.
9 Q One indicator that the office of independent
10 schools will look at is the curriculum. That's
11 one indicator as to whether a school is meeting
12 those requirements?
13 A Yes.
14 Q And in that connection you did discuss yesterday
15 the integrated resource packages or the IRPs?
16 A Yes.
17 Q And schools must meet learning outcomes identified
18 in those IRPs?
19 A Yes.
20 Q Including time requirements?
21 A Yes.
22 Q Are you familiar, sir, with the IRP for health and
23 career education 8 and 9?
24 A To some extent.
25 Q To some extent. The committees themselves would
26 be familiar with this?
27 A Yes.
28 Q When they're conducting their evaluations?
29 A Yes.
30 Q If we could turn, sir, please to the -- to tab 14
31 of the binder. Do you recognize the document
32 before you, sir?
33 A Yes.
34 Q Can you identify it?
35 A Health and career education 8 and 9.
36 Q And you would agree that this is the IRP for that
37 course module?
38 A Yes.
39 Q And this is the current IRP?
40 A Yes.
41 MR. OLTHUIS: If we could have that marked, My Lord, as
42 the next exhibit.
44 THE CLERK: Exhibit 144, My Lord.
45
46 EXHIBIT 144: Found at Tab 14 of Exhibit W for ID.
47 69 page double-sided p/c Heath and Career
4
1 Education 8 and 9 Integrated Resource Package

2 2005.
3
4 MR. OLTHUIS:
5 Q And you mentioned, sir, that you have some
6 knowledge of the content of this IRP?
7 A Yes.
8 Q Are you aware as to the matters that it generally
9 covers?
10 A Yes.
11 Q So it's really the specifics that you are a little
12 hazier on. You're familiar with the general
13 thrust of the program?
14 A Right. Sure.
15 Q And you're aware then that broadly it covers
16 knowledge and skills that are required to assist
17 students in making informed decisions about
18 their -- for example, their health and sexuality?
19 A Yes.
20 Q And their education?
21 A Yes.
22 Q Their future careers?
23 A Yes.
24 Q And are you also familiar, sir, with the IRP for
25 the course referred to as planning 10?
26 A Yes.
27 Q And if you could turn, sir, please, to the next
28 tab in the binder. It's tab 15. Can you identify
29 this document, sir?
30 A Planning 10 Integrated Resource Package 2007.
31 Q This is the current IRP?
32 A Yes, it is.
33 Q For this curriculum.
35 next exhibit.
36 THE COURT: 145.
37 THE CLERK: 145, My Lord.
38
40 32 page double-sided p/c Planning 10 Integrated
41 Resource Package 2007
42
43 MR. OLTHUIS:
44 Q And again your familiarity with this IRP would be
45 at a general rather than specific level?
46 A Yes.
47 Q But you would be aware that this IRP does cover
5
1 additional elements of life skills for

2 transitioning to adult life?
3 A Yes.
4 Q It covers, for instance, financial literacy?
5 A Yes.
6 Q And the exploration of a range of post secondary
7 education and career choices for students?
8 A Yes.
9 Q So you would agree that generally these IRPs
10 together, both of the ones that I've taken you to,
11 are geared towards fostering the exercise of
12 personal autonomy for students?
13 A Sure.
14 Q Preparing students for adulthood, in other words?
15 A Yeah.
16 Q Part of that would be instilling in the students
17 the awareness of their rights to assert their
18 personal autonomy in various situations?
19 A Yeah, I would assume that that could well be part
20 of the planning 10 and the health career education
21 package, yes.
22 Q And of making informed and healthy decisions
23 regarding their sexuality?
24 A Yes.
25 Q And you would agree as well that the skills that
26 are covered in both of these IRPs are important
27 ones?
28 A Yes.
29 Q As important as the traditional subjects that we
30 would refer to as the three Rs?
31 A Yes.
32 Q The education in these areas, sir, would equip
33 students to recognize appropriate and
34 inappropriate behaviour in certain circumstances?
35 A I would expect so.
36 Q It would certainly be intended to do that?
37 A Yes.
38 Q And it would give students an awareness of -- or
39 it would be intended, I should say, to give
40 students an awareness of their rights in the face
41 of situations of abuse?
42 A Yes.
43 Q Now, with respect to abuse and particularly abuse
44 of children, the office of the inspector of
45 independent schools recognizes abuse as a serious
46 problem, does it not?
47 A Yes.
6
1 Q And, in fact, it has a guide for independent

2 school personnel that deals with responding to
3 allegations of child abuse?
4 A Yes.
5 Q And if we could turn, sir, to the next tab,
6 tab 16. Do you recognize this as a copy of that
7 guide?
8 A Yes.
9 Q And you're familiar with this?
10 A Yes.
16
18 1 page double-side p/c document "Supporting Our
19 Students: A Guide for Independent School Personnel
20 Responding to Child Abuse", undated
21
22 MR. OLTHUIS:
23 Q One of the things, Mr. Vanderboom, that this guide
24 discusses is that independent school authorities
25 are required to have policies and procedures in
26 place to respond to allegations or situations of
27 suspected child abuse or neglect?
28 A Yes.
29 Q And those policies and procedures, in terms of
30 their content, they must be such as to permit the
31 authority to respond both effectively and
32 promptly?
33 A Yes.
34 Q Would a review of the policies in place form part
35 of the external evaluation?
36 A Yes, it would.
37 Q Would it form part of a monitoring inspection?
38 A Yes, it would.
39 Q At the bottom of the first page of this guide that
40 we have as Exhibit 146, there's a reference to the
41 Child, Family and Community Service Act, and the
42 guide refers to a duty to report situations in
43 which a person has reason to believe that a child
44 is in a situation of some danger; is that correct?
45 A Yes.
46 Q And what that refers to is a mandatory obligation?
47 A Yes.
7
1 Q Mandatory obligation to report to a child welfare

2 worker if there is essentially a reasoned basis?
3 A Yes.
4 Q For belief of harm or neglect to a child?
5 A Yes.
6 Q And I take it then that as part of the evaluation
7 and monitoring that your office would want to see
8 an acknowledgment of this duty built into the
9 policies and procedures that the authorities are
10 obligated to have?
11 A Can you run me by that question again?
12 Q You've indicated, sir, that this is a mandatory
13 reporting obligation?
14 A Yes.
15 Q And my question is whether in reviewing the
16 policies and procedures of the school authority
17 whether your office or the person reviewing, the
18 committee reviewing, would want to see an
19 acknowledgment of this mandatory duty built in or
20 permeating throughout the policies?
21 A We would -- we would request that we have
22 confirmation that there is a policy in place and
23 that that policy meets the requirements of the
24 document in question here.
25 Q Question including the mandatory reporting?
26 A All parts of it.
27 Q All parts of?
28 A We wouldn't ask specifically on each part do you
29 acknowledge this part, this part and this part.
30 We would ask in general do you have a policy
31 regarding the reporting of child abuse and is it
32 consistent with the expectations of the -- of the
33 document in question here.
34 Q Just to be clear though you would ask these
35 questions, but would you actually review the
36 policies as well?
37 A The committee may -- may choose to review them. I
38 don't know that in every case it might do that.
39 Q So it may be as simple as a question?
40 A It may be as simple as a question. I can't speak
41 to every case in question.
42 Q And if it is a question obviously then, I suppose
43 it goes without saying, but you would rely in part
44 on the answer that was given?
45 A Yes.
46 Q Thank you. Sir, in addition to having the
47 curriculum and policies in place that we've talked
8
1 about, the office of the inspector of independent

2 schools also looks in its evaluations at delivery
3 or implementation of those matters as well?
4 A Yes.
5 Q And I think you mentioned yesterday that you
6 looked at these aspects, the delivery and
7 implementation --
8 A Yes.
9 Q -- as part of the educational program review?
10 A Yes.
11 Q Regarding the child abuse policy that we've just
12 looked at or that aspect of the review, what role
13 would a principal play in the implementation of
14 such a policy?
15 A Well, I think the principal -- it seems to me the
16 principal would have a responsibility to ensure
17 that there was a policy and to ensure that the
18 staff are aware of the requirements of the policy.
19 Q So the implementation role of the principal would
20 simply be making sure staff is aware?
21 A Yes.
22 Q Of the existence of the policy and the substance
23 of the policy?
24 A Yes.
25 Q What role then, sir, would teachers play in
26 implementation of the policy?
27 A I think teachers would also need to be aware of
28 the policy and also its requirements.
29 Q Thank you. I wanted to turn then in a little more
30 detail to the Bountiful Elementary-Secondary
31 School, BESS I'll refer to it in short, and the
32 Mormon Hills school, and you provided some
33 evidence about these schools yesterday?
34 A Yes.
35 Q And in preparing your evidence you did review the
36 evaluations and inspections that had been
37 performed?
38 A Yes.
39 Q With respect to those two schools?
40 A Yes.
41 Q And you familiarized yourself with those?
42 A Yes.
43 Q As you mentioned in your affidavit and a couple of
44 times yesterday BESS has had a number of
45 evaluations and inspections since 1993?
46 A Yes.
47 Q And your evidence is that the frequency of those
9
1 has been far greater than would normally be the

2 course -- the case, pardon me -- for another given
3 school?
4 A Yes.
5 Q And I believe you provided evidence yesterday that
6 evaluations and inspections that your office
7 carries out are typically one to two days in
8 length?
9 A Yes.
10 Q And you agree there are practical limitations as
11 to what committee members can see during that
12 time?
13 A Yes.
14 Q The picture they can obtain of the school?
15 A Yes.
16 Q You agreed with Ms. Trask yesterday that to some
17 extent because of those practical limitations
18 committees will rely on the evaluation catalogue
19 that's filled out by the school?
20 A Yes.
21 Q If I could take you then, sir, to tab 3. Do you
22 recognize this document, sir?
23 A Yes, I do.
24 Q And can you please identify it for His Lordship?
25 A Program evaluation for Grades 11 and 12 for
26 Bountiful Elementary-Secondary School
27 November 7/8, 2007.
28 Q And this relates to an evaluation that you played
29 a personal role in; correct?
30 A Yes.
33 THE COURT: Yes. Is it an exhibit to your affidavit?
34 MS. GREATHEAD: Yes, My Lord. It is.
35 MR. OLTHUIS: Oh, pardon me, then. We won't have to
36 mark that then, My Lord.
38 MR. OLTHUIS:
39 Q The evaluation in question, sir, was in connection
40 with the application of the school to have grades
41 11 and 12 re-classified; am I correct?
42 A Yes.
43 Q And it was a two-day evaluation?
44 A Yes.
45 Q You indicate that you visited classes, talked to
46 teachers?
47 A Yes.
10
1 Q And am I correct that what is set out on page 1 is

2 really the sum total of what was done in the
3 course of the evaluation?
4 A Yeah, I believe that to be true.
5 Q At page 2, sir, under heading 5. Heading five
6 reads "Educational Program." I just wanted to
7 confirm with you, that refers both to curriculum
8 and instruction, does it?
9 A Yes, it would.
10 Q And can one use instruction and delivery or
11 implementation essentially as synonyms?
12 A Delivery -- delivery and instruction, yeah. That
13 would be -- certainly similar. There may be
14 nuances of difference but sure.
15 Q One of the things that's identified in this
16 report, sir, is that planning 10, one of the IRPs
17 that we took a look at, was scheduled for 35 hours
18 of instruction over the year?
19 A Yes.
20 Q You see that in page 2?
21 A Yes.
22 Q And you would agree with me that that's far short
23 of what required?
24 A Yes.
25 Q Under the Ministry's guidelines?
26 A Far short of what is required for completing
27 planning 10 for the purposes of graduation
28 requirements, yes.
29 Q And during this report did you actually see
30 planning 10 courses being taught?
31 A I don't recall whether I was in every classroom
32 and for how long but quite possibly I was in
33 planning 10. I can't say for certain that I was.
34 The fact that there was not enough hours of
35 instruction may have diverted me to other matters
36 of importance with respect to the visit.
37 Q The report doesn't mention any specific
38 observations from being in a Planning 10 course?
39 A No, I don't believe it does.
40 Q It simply mentions that the -- it mentions that
41 classes were visited generally?
42 A M'mm-hmm.
43 Q But regarding Planning 10 it simply says that 35
44 hours of instruction were scheduled?
45 A Yes.
46 Q If I can take you then, sir, to tab 4. Could you
47 please identify this document, sir?
11
1 A External evaluation report on Bountiful Secondary

2 in November 12th to 14th in 2008.
3 Q Now, sir, you're familiar with this document as
4 well?
5 A I am, yes.
6 Q And of the evaluation it describes?
7 A Yes.
8 Q If we can turn to page 5, sir. We have a heading
9 "Educational Program," heading 6?
10 A Yes.
11 Q And again, it refers to curriculum and
12 instruction?
13 A Yes.
14 Q So this would be looking as well at the delivery
15 essentially of the curriculum to the students?
16 A Yes.
17 Q Not simply just its existence on paper?
18 A Right.
19 Q If we can then flip -- I'll skip over the
20 elementary grades. If we can turn to page 8, sir.
21 Roman numeral III. Late intermediate program for
22 Grades 8 and 9?
23 A Yes.
24 Q And then if we can flip over two further pages,
25 still under that subheading we have reference to
26 health and career education?
27 A Yes.
28 Q And this would relate to the IRP that we've
29 discussed earlier and had marked as an exhibit;
30 correct?
31 A Yes.
32 Q What is indicated here is that the course Health
33 and Career Education 8 and 9 are offered in
34 alternate years?
35 A Yes.
36 Q And can you assist me, please, with understanding
37 what that would mean?
38 A This would mean that Grade 8 and 9 is likely a
39 combined class and one year the Grade 8 curriculum
40 would be offered and the following year the
41 Grade 9 curriculum would be offered.
42 Q All right. And then if we can turn over to
43 page 11. We're now under the subheading the Roman
44 numeral IV for the senior years Grades 10 to 12.
45 Towards the bottom of page 11 we see Planning 10
46 and again we see here reference to the course
47 being offered over a two-year period?
12
1 A Yes.
2 Q With half of the required instruction taught last
3 school year?
4 A Yes.
5 Q And half taught this year?
6 A Yes.
7 Q And so that's consistent with your understanding
8 of the Health and Career IRP?
9 A Yes.
10 Q How that's taught?
11 A Yes.
12 MR. OLTHUIS: If we could get this marked, My Lord, as
13 the next exhibit. I do not believe it is appended
14 to the affidavit.
15 THE CLERK: Exhibit 147.
17
19 8 page double-sided p/c "External Evaluation
20 Report on Bountiful Elementary Secondary School...
21 November 12 - 14, 2008"
22
23 MR. OLTHUIS:
24 Q If we could then turn, sir, over to tab 6. Do you
25 recognize this document?
26 A Yes. External evaluation report on Bountiful
27 Elementary-Secondary School, October 13th, 14th,
28 2010.
29 Q And this would have related to a period during
30 which you were the inspector?
31 A Yes.
32 Q So you would in that case, I suppose, have
33 appointed the members of the committee?
34 A Yes.
35 MR. OLTHUIS: If we could get this marked as the next
36 exhibit, My Lord.
39
41 8 page double-sided p/c "External Evaluation
42 Report on Bountiful Elementary-Secondary School...
43 October 13 - 14, 2010"
44
45 MR. OLTHUIS:
46 Q If we could turn, Mr. Vanderboom, to page 13 of
47 this document. We see reference towards the
13
1 bottom of that page again to health and career

2 education?
3 A Yes.
4 Q And you can confirm that this would relate to the
5 IRP that we've looked at?
6 A Yes.
7 Q And again we see reference to the course being
8 offered on alternate years. We also see reference
9 to the fact that the committee did not observe the
10 class?
11 A Yes.
12 Q And you would agree that that's your
13 understanding?
14 A Yes.
15 Q In other words, what was reviewed would have been
16 the written curriculum?
17 A Yes.
18 Q But not its implementation?
19 A There may have been discussion with the teachers.
20 I don't know. I can't tell from the report
21 whether that would have been the case or not.
22 Q But in any event the actually classes themselves
23 were not observed?
24 A Right.
25 Q And if we can turn over to the next page, sir. We
26 see reference to Grade 10 and roughly half or
27 two-thirds of the way down the page there's a
28 paragraph that is bolded, but right below that we
29 see "Planning 10 is taught in units over two
30 years"?
31 A Yes.
32 Q So that by the end of the two-year cycle all
33 students have met the course requirements?
34 A Yes.
35 Q There's no indication those classes were observed
36 either. Do you have any personal knowledge as to
37 whether they were?
38 A No, I don't.
39 Q So it's safe to say that on the documents that
40 we've reviewed that in spite of the increased
41 evaluations of Bountiful Elementary there's no
42 evidence that the actual courses in question with
43 reference to the IRPs I've taken you to, that
44 those were of observed in their taught
45 application?
46 A Based on what you have indicated here and what is
47 reported there is no evidence of that.
14
1 Q And you have no knowledge as to whether that was

2 the case?
3 A I have no knowledge whether that is or is not the
4 case.
5 Q Mr. Vanderboom, you agreed with Ms. Trask that the
6 committees obviously can't be present to monitor
7 24/7?
8 A Yes.
9 Q What more robust steps could be taken in order to
10 ensure and confirm that the curricula that exist
11 on paper are actually being taught to the
12 children?
13 A Well, there's probably a number of things that
14 could be done. One thing that could be done is
15 you could go more frequently or you could stay
16 longer.
17 Q And is there a reason why those things are not
18 done presently?
19 A I think it was believed -- generally being
20 believed that the inspection process is thorough,
21 that it reviews the matters that are identified as
22 required and that through conversation and -- with
23 staff and review of the planning, short and
24 long-range planning, that there is sufficient
25 indications of meeting the requirements of the
26 curriculum.
27 Q But again that would appear to be based primarily
28 on review of paper and discussions with teachers
29 and principals?
30 A Well, if you're going to be in a classroom -- if
31 you're going to be in a school two days, as you
32 indicated yourself, you can't see everything
33 unless you were there every day for the entire
34 year. What we do when we come in and do an
35 external evaluation is look at a point in time and
36 determine whether what we see at a point in time
37 is consistent with the planning that is undertaken
38 at that point in time. And we determine whether
39 there's reason to believe that anything is not
40 being done in a way that is indicated by the
41 planning that's -- that the teachers in the school
42 is undertaking. In the event that it appears that
43 there some other matters that are not being
44 addressed then the team might come back or stay
45 longer. In the cases in which you have identified
46 it appeared to the committee that what was being
47 done was adequate and was meeting the learning
15
1 outcomes of the required curriculum.

2 Q So in other words, if I can summarize this, and
3 please let me know if I'm summarizing this fairly,
4 it would be in situations where the paper
5 curriculum or the answers provided by the teachers
6 gave the committee members some cause for concern.
7 It would be in those situations where they might
8 think to spend extra time in a classroom?
9 A Or looking at the paper would be one thing, or
10 having visited classrooms if it was felt that
11 there was more that needed to be identified then
12 perhaps the team would stay longer.
13 Q But those -- my point is that those things would
14 be steps taken in the event that the initial
15 review caused some concern with the committee
16 members? It wouldn't be done as a matter of
17 course?
18 A No, no, it wouldn't be done as a matter of course.
19 It would be undertaken if it was felt that more
20 attention was needed in one or the other areas.
21 MR. OLTHUIS: Thank you, sir. Those are my questions.
22 THE COURT: Thank you. That concludes cross, does it?
23 Thank you.
24 MR. SIREN: Yes.
25 THE COURT: Yes. Thanks, Mr. Siren.
26 MS. GREATHEAD: I have no redirect, My Lord.
27 THE COURT: Thank you. Mr. Vanderboom.
28
29 (WITNESS EXCUSED)
30
31 MR. JONES: My Lord, our next witness will be
32 Mr. Klette. Before we get to Mr. Klette, though,
33 because his affidavit is one thing that needs to
34 be entered, we thought we would take the
35 opportunity to tidy up a few matters of evidence.
36 THE COURT: Yes, thank you.
37 MR. JONES: So we would submit, and Madam Clerk has a
38 copy of the affidavit number 2 of Bruce Klette,
39 and we ask that that be admitted.
41 THE CLERK: That's Exhibit 149 My Lord.
42
43 EXHIBIT 149: 1 sealed brown envelope with white
44 label on both sides with black felt and pencil
45 notations; said to contain an original Affidavit
46 #2 of Bruce Klette sworn Jan 18, 2011.
47 [Sealed pursuant to Order of Chief Justice Bauman
16
Discussion
1 dated Jan 28, 2011]

2
3 MR. JONES: There are also two supplementary Brandeis
4 brief affidavits, that is of Ms. Isbister number 4
5 and my friends have one now that's been filed from
6 Ms. Luca.
7 THE COURT: Yes.
8 MR. JONES: Number 2, I believe. Yes, number 2 of
9 Ms. Luca. Sorry, first is Isbister number 4.
12
13 EXHIBIT 150: 1 cerlox brief "Affidavit #4 of
14 Kaley Isbister" filed Feb 04 2011; 2 page
15 affidavit; Tabs A - C; original
16
17 MR. JONES: And Ms. Luca number 2.
20
21 EXHIBIT 151: 1 clear covered cerlox brief
22 containing "Affidavit #2 of Brianna Luca" filed
23 Feb 9 2011; 2 page affidavit; Tabs A - C; original
24
25 MR. JONES: There's one outstanding question that I
26 think my friends would prefer still to discuss
27 after lunch.
28 MR. DICKSON: That's correct.
29 MR. JONES: And that is the status, if I can put it
30 that way, of the legislative history brief and the
31 two volumes appended to it.
32 THE COURT: Right.
33 MR. JONES: And finally, I was discussing with Madam
34 Clerk the still forthcoming affidavit of Ms. Gabe
35 which will be the translated version of the Quebec
36 report. There is no chance that that's going to
37 be filed by today. My proposal for dealing with
38 that would be to reserve an exhibit number for it.
39 We'll distribute the reserved number along with
40 the affidavit hopefully this week. People can
41 refer to it, and I was hoping then perhaps I might
42 at some point just get five minutes of the court's
43 time and come in and have it entered between now
44 and the argument stage.
45 THE COURT: So we'll reserve 152 for it?
46 THE CLERK: We'll reserve 152, My Lord.
47 MR. JONES: Thank you, My Lord. And then subject to
17
Discussion
1 the legislative history brief -- I'm sorry, there

2 is another item, a supplementary Brandeis brief of
3 my friend. He can speak to that.
4 MR. ILNYCKYJ: Paul Ilnyckyj appearing for the
5 Christian Legal Fellowship.
7 MR. ILNYCKYJ: The court clerk brought it to our
8 attention yesterday afternoon that there had been
9 material submitted but it has not been entered as
10 an exhibit. It was originally material that was
11 circulated by Ms. Wilke in November 24th and the
12 application appears to have been made by
13 Mr. Chipeur but it hadn't been entered as an
14 exhibit. I'm going to ask you to enter it. And
15 there are two binders and perhaps I can assure
16 with the court clerk that we're marking the right
17 ones.
18 THE CLERK: My Lord, what is -- Exhibit F is
19 affidavits?
20 THE COURT: Yes.
21 THE CLERK: The book and two binders.
22 THE COURT: Okay. So that's Exhibit F for
23 identification will be -- will we reserve a
24 number?
25 THE CLERK: Yes, Exhibit 46, My Lord.
26
27 EXHIBIT 46: 1 bundle of documents held with
28 elastic band containing a 4-page original
29 Affidavit of Audry Lim filed Nov 24 2010.
30 1 original book titled "The Female Circumcision
31 Controversy", enclosed in clear plastic exhibit
32 bag.
33 1 untitled black binder, first page is a p/c of
34 "Harem The World Behind the Veil.
35 1 untitled black binder, first page is a p/c of
36 "William and Mary Journal of Women and the Law"
37
38 MR. ILNYCKYJ: Thank you.
40 MR. JONES: I'm sorry, My Lord, I've forgotten that my
41 friends too I believe have one outstanding
42 affidavit.
43 MS. HERBST: Thank you. And Madam Registrar very
44 kindly reminded us that we have one exhibit that
45 was marked for identification but not converted
46 into a proper exhibit, if I can put it that way,
47 and it's the affidavit of Marion Watson which I
18
Bruce Klette (for AGBC)
In chief by Ms. Bevan
1 omitted to ask for the exhibit number. It was an

2 affidavit that was filed with -- in the same
3 category as Mary Bachelor and Anne Wild.
4 THE CLERK: That was Exhibit K, My Lord.
5 THE COURT: Okay. And did we reserve something?
6 THE CLERK: Yes, it becomes Exhibit 68, My Lord.
7 THE COURT: Thank you very much.
8
9 EXHIBIT 68: 20 page original "Affidavit #1 of
10 Marianne T. Watson" filed Oct 20 2010.
11
12 MS. HERBST: If I may note, My Lord, it had been
13 originally marked for identification like
14 Ms. Bachelor's affidavit and Ms. Wild's because
15 the Attorney General of British Columbia was
16 concerned about the characterization of her as an
17 expert proper. I understand the Attorney General
18 of British Columbia doesn't object to the
19 admission of any portion of that affidavit
20 including opinion evidence, but again with the
21 reservation that she not be characterized as an
22 expert per se, and that's acceptable to us as
23 well.
25 MS. HERBST: Thank you.
26 THE COURT: So, Mr. Jones.
27 MR. JONES: We'll call Mr. Bruce Klette to the stand.
28
29 BRUCE KLETTE, a witness
30 called by the AGBC,
31 affirmed.
32
33 THE CLERK: Please state your full name and spell your
34 last name for the record.
35 THE WITNESS: Bruce Victor Klette. Last name is
36 K-l-e-t-t-e.
37 THE COURT: Please have a seat, sir.
38 THE WITNESS: Thank you.
39 MS. BEVAN: My Lord, it's Sarah Bevan for the Attorney
40 General of British Columbia. For the record
41 that's B-e-v-a-n.
43
44 EXAMINATION IN CHIEF MS. BEVAN:
45 Q Mr. Klette, do you have in front of you a copy of
46 your affidavit number 1 sworn January 18th, 2011
47 and also a copy of your affidavit number 2 sworn
19
1 January 18th, 2011?

2 A I do.
3 Q And those are the two affidavits that you have
4 sworn in this proceeding?
5 A Yes, they are.
6 Q Mr. Klette, in those two affidavits you have
7 provided some information on birth registration
8 records that are on file with the BC Vital
9 Statistics Agency. I will refer to the BC Vital
10 Statistics by its acronym BCVSA for convenience.
11 Can you explain generally what the BCVSA is.
12 A The BCVSA is a government agency that has a number
13 of roles. It assimilates information around life
14 events. Those are births, deaths, marriages,
15 stillbirths, adoptions. It also manages a wills
16 registry. The information that it collects gets
17 used for a number of different purposes. Purposes
18 of identity management, of statistics, health
19 statistics, as well as research.
20 Q And at paragraphs 2 and 4 in your affidavit,
21 Mr. Klette, you have mentioned that the BCVSA is a
22 special operating agency of the Ministry of Health
23 Services. Can you explain what that means and
24 what the rationale is.
25 A A special operating agency was a designation put
26 forward by treasury board to allow certain
27 organizations where it was felt some streamlining
28 could occur to use a portion of their recoveries
29 and put that back into operational improvements.
30 Practically speaking it means that the agency,
31 while still part of the Ministry of Health, does
32 operate fairly autonomously. Not to the same
33 degree as a Crown corporation but somewhere
34 between a Crown corporation and the Ministry of
35 Health.
36 Q And you mentioned a moment ago that one of the
37 things that the BCVSA does is identity management.
38 Can you explain what that means.
39 A As a service provision the agency issues birth
40 certificates and death certificates. Now, birth
41 certificates are seen as a foundation identity
42 document. That is the document that an individual
43 born in BC will use to prove his citizenship.
44 So the agency is responsible for collecting
45 information for the registration of those births.
46 That information comes in from a number of
47 different sources which will prove that identity.
20
1 It then holds that information in a secure manner

2 and issues certificates based on those registries.
3 It means that the information that we hold is
4 extremely private and it creates a requirement for
5 a very high level of accuracy on that information.
6 Q And about how many people in total work at the
7 BCVSA?
8 A It fluctuates slightly but it's usually around 80.
9 Q And at paragraphs 1 and 6 in your affidavit you
10 have said that you are the director of information
11 technology services at the BCVSA?
12 A That's correct.
13 Q At paragraph 6 you mentioned four primary areas of
14 responsibility. Can you explain what your job
15 involves, focussing in particular on your data
16 steward role and also supervision of the data
17 extract developers.
18 A Okay. So the areas that we're not going to focus
19 on, very briefly, is just around the development
20 of application systems and on medical coding and
21 the assertion of quality of data coming in.
22 As far as the data steward's role goes, I am
23 the data steward for the Vital Statistics Agency.
24 What this means is that I'm responsible for having
25 all extracts, statistic or research data made
26 available for responding to press requests or
27 responding to minister's letters or information
28 for ad hoc data. I also have a delegated
29 authority for the release of that data to ensure
30 that the release of the data complies with FIPA or
31 with the Vital Statistics Act that has very
32 specific terminology in it around data rules.
33 To that end I sit on a couple of data stewards
34 councils or boards, one for Statistics Canada and
35 one for Population Data BC. I'm sorry, could you
36 repeat the second area you would like me to focus
37 on? It was the role as data steward and?
38 Q Yes, the programming and the data extract.
39 A Oh, the extracts. I have a staff of 15 employees.
40 Some of whom are have a computer science
41 background in programming. Part of their jobs is
42 to write the algorithms that extract the data from
43 a relational database into the types of formats
44 that are required such as those specified in this
45 affidavit.
46 Q And, Mr. Klette, you mentioned amount ago FIPA and
47 I assume by that you mean the Freedom of
21
1 Information and Protection of Privacy Act?

2 A The Protection of Privacy Act, yes.
3 Q Just to be clear. And you mentioned also
4 programming and algorithms. So is the computer
5 system that the BCVSA has, is it set up like a
6 sort of library catalogue search engine where the
7 tools are readily at hand to fulfil research
8 requests, or is it something that requires more
9 specialist programming. How does that work?
10 A Data -- excuse me, the data is held in a
11 relational database which is an IT technical
12 mechanism for holding data. The reason that this
13 is done is for reasons of data redundancy and for
14 the ability to tie various data elements together.
15 I won't go into too much detail, but suffice to
16 say to answer the question that although there is
17 an application system for basic searches, searches
18 of the nature of what was required for this
19 affidavit do require programs to be developed to
20 extract and present the data in the formats
21 needed.
22 If we have a request that's going to be
23 recurring we can write the algorithms once and
24 simply run them as required. Many requests which
25 are more complex would require the development of
26 custom algorithms to extract and present the data.
27 Q And in your role as director of information
28 technology services about how many employees at
29 the BCVSA out of the 80 total do you have
30 reporting to you?
31 A I have 15 employees reporting to me plus
32 additional contractors as required.
33 Q Are you the head person at the BCVSA for the sort
34 of data requests that the Attorney General made in
35 this case or is there somebody else above you?
36 A No, I respond to all data requests whether they
37 come from within public service or from outside of
38 the agency, and even if they come from outside of
39 the country, so they would come through me.
40 Q And you mentioned in your affidavit and just a
41 moment ago in your testimony that you provide data
42 to various stakeholders?
43 A Yeah.
44 Q How many of those are there?
45 A Well, as far as separate organizations there are
46 approximately 30 to 40 organizations that we
47 provide data to. That does not include research
22
1 requests. We have a large number of research

2 requests that come from the academic
3 organizations. They are usually faulted through a
4 collaboration called Population Data BC. The
5 types of organizations we provide data to are
6 federal ministries such as Service Canada or
7 Canada Revenue Agency. Statistical groups such as
8 BC Stats or Statistics Canada. Research
9 organizations like Population Data BC.
10 Organizations are more interested in identity such
11 as ICBC, and then we provide data to similar
12 organizations, the vital statistics agencies
13 across the United States and Canada.
14 Q Okay.
15 A That's a cross section.
16 Q Okay. And you mentioned in particular Population
17 Data BC. Can you explain what Population Data BC
18 is?
19 A Population Data BC, or I'll refer to it as Pop
20 Data, is a collaboration of academic institutions
21 that -- they saw the need to take data from
22 multiple data sources and to link this data
23 together in order to do longitudinal studies.
24 Rather than each research project having to apply
25 to each one of those data sources and taking years
26 to get the agreement to get all of the data, they
27 took it upon themselves to form this
28 collaboration, put a request in for the data, take
29 the data, link it together and anonymize it. They
30 then created a secure research environment that
31 statisticians or researchers can then go to do
32 advanced medical or economic studies.
33 It is a fairly large group. It currently has
34 about 5 or 6 data stakeholders but it is
35 increasing all of the time. The information
36 sharing agreements for access to the data we have
37 collaborated extensively with them. They do have
38 cabinet approval for the way that they are -- and
39 the methodologies that they are implementing to
40 just facilitate this research.
41 Q And what is the difference between what the BCVSA
42 does and Population Data BC or BC Stats or one of
43 these outside stakeholders that receive data?
44 What is the difference between what the two do?
45 A Our focus is on the collection of the data, the
46 quality and the purity of that data and the
47 provision of the data. It's important to
23
1 understand that being the identify registry and

2 being the foundation identity -- someone would
3 approach the agency claiming to have lost or never
4 had issued any identity at all and we have to be
5 able to issue an identity document to that person
6 based purely on their recollection of that event,
7 which means that we have to have a completely
8 accurate record of that event.
9 We assimilate the data, we ensure certain
10 levels of data quality and then we create the
11 extracts and provide the data to the researchers.
12 We do not get into advanced statistics. We do not
13 do studies on the data or draw any kind of
14 inferences from the data.
15 Q Does the BCVSA have any in-house statisticians or
16 demographers?
17 A We do not have any inhouse statisticians. Now,
18 that said, in the same way that an accountant
19 would have a knowledge of mathematics but not call
20 himself a mathematician, we employ programmers,
21 computer scientists, myself included, that will
22 have some knowledge of statistics because of the
23 nature of the data. But we don't call ourselves
24 statisticians or profess to be. We are data
25 analysts.
26 Q Okay. At paragraph 1 in your affidavit you said
27 that you became the director of technology
28 services at the BCVSA in 2005 and then at
29 paragraph 7 you mention that you have had a
30 professional career in information technology
31 spanning some years. Can I ask you to explain
32 briefly what your background was before joining
33 the BCVSA and before becoming the director of
34 information technology services?
35 A Yes, I started my career in South Africa at First
36 National Bank. I worked as a programmer and
37 analyst in international and corporate banking.
38 From there I moved to a company called FDP, part
39 of the Sun God group based out of Boston. I
40 worked as an architect developing applications for
41 again, similar type of extraction and presentation
42 of data. This was for pension and provident fund
43 administration. Strict -- it was financial data.
44 Through Sun God I worked in a number of
45 countries, Australia, Ireland, England. I then
46 moved to Canada and took a position with EDS,
47 which is now part of Hewlett Packard, focussing on
24
1 government systems. I did some contracts for BC

2 Ferries, some for Public Safety and Solicitor
3 General. I joined the public service I believe it
4 was in '95 where I joined the agency as an
5 architect then moved into the role of director
6 that I hold now.
7 Q Okay. At paragraph 22 of your affidavit you
8 mention the BCVSA's vital event registry. Can you
9 explain what that is?
10 A The vital event registry is the relational
11 database that I spoke to. It is a mechanism of
12 holding all of the data on vital events or related
13 to vital events, both the demographic information
14 as well as the medical information for those
15 events. It also has an application on top of it
16 for clerical use. That would be for the provision
17 of services to the public as well as for
18 adjudication of data and a number of ancillary
19 systems for the collection data and the provision
20 of services. So that entire structure is what we
21 term "the registry," with the most important piece
22 being the database at the bottom.
23 Q Okay. And with respect to birth registration
24 records how is the information collected that
25 makes up that data on births in the vital event
26 registry?
27 A On birth registrations the information comes from
28 two sources: the one source will be the medical
29 facility, the certifier of the birth. Now, I mean
30 some births can be home births but the majority of
31 them come from hospitals. The second source will
32 be the parents of the child. Those two documents
33 are linked together and collapsed into a birth
34 vital event record.
35 Where there are discrepancies on the
36 information or where clarification is required we
37 do have staff that will go back to the informing
38 institutions or the parents requesting the
39 clarification. We have to have the data and we
40 have to have it accurate before that record can be
41 moved to a state that a birth certificate can be
42 issued off it.
43 We also have registered nurses that are
44 responsible for the medical coding to ensure that
45 the medical information on that event is accurate.
46 That is what -- one of the primary uses of the
47 research -- primary requirements for research in
25
1 the future.
2 After that entire process is completed the
3 record will be marked to a status meaning that an
4 a certificate can be issued off that record.
5 Something -- just to touch on this, sorry, is I
6 keep coming back to quality, but for example all
7 of this information is double keyed. There can't
8 be any mistakes made on that information
9 Q Okay. And you mentioned -- Mr. Klette, you
10 mentioned two documents that are brought together
11 to form a --
12 A Yes, the medical document is the notice of birth.
13 The document coming from the parents is the
14 registration document.
15 Q And I believe those are attached to your affidavit
16 as exhibits?
17 A Correct. What is attached to the affidavit is a
18 certified copy of the registration document.
19 Q Right. Your affidavit number 11 actually,
20 Exhibit A is the --
21 A I see. Okay. Sorry. My mistake.
22 Q The blank copies.
23 A Yes.
24 Q Those are the two documents at Exhibit A and
25 Exhibit B; is that correct?
26 A Yes, the notice of live birth and the registration
27 document, correct.
28 Q Thank you. What is the scope of the birth records
29 that the BCVSA has both geographically and across
30 time?
31 A Geographically it's all births that occur within
32 the province of BC. Across time? The
33 documents -- the documents do backdate -- date
34 back to 1872 although documents -- those documents
35 are not necessarily all captured in an electronic
36 registry. The electronic registry goes back to
37 1910. Not all of the information back in the
38 earlier years is complete because we very seldom
39 get a person requesting a birth certificate where
40 they were born in 1910. It is only the more
41 recent information that is complete. The way that
42 we deal with that is if somebody did have to come
43 in and request a birth certificate for data that
44 is not complete we will then go back to the
45 original -- the image of the original records and
46 we will complete that record in full before that
47 certificate is issued. But it will be done on an
26
1 as required basis.
2 Q You mentioned previously the private nature of the
3 birth records. Can you comment on the privacy
4 concerns that the BCVSA has about the birth
5 records that it keeps.
6 A Yes, the privacy concerns are twofold. The one is
7 simply meeting FIPA, but the other one is because
8 of the use of this data for the issuance of a
9 foundation identity document we do not want
10 anybody to get sufficient information about that
11 event to apply for a certificate fraudulently. We
12 have to keep that data private. This will -- this
13 extends even to keeping each event separate from
14 another and not linking say a mother on one birth
15 to a mother on another birth. They are kept as
16 separate individual parties on each of those
17 events.
18 This touches on something that I alluded to
19 earlier, Population Data BC. It is very obvious
20 that for research purposes, somebody doing medical
21 research, they would require that they can see an
22 entire family structure so that is why they have
23 to undertake that work at that time. And it is
24 similar to the work that I had to undertake to for
25 some of the information of this affidavit.
26 Q Would the BCVSA ever let a demographer or
27 statistician from outside the agency come in and
28 have wholesale access to the vital event registry
29 to do research?
30 A No, we have got very strict legislative
31 requirements around who can have access to that
32 data and it would not allow an outside party that
33 access.
34 Q Turning then to the research that you did for the
35 AGBC in this case, can I ask you to explain in
36 general terms how you used the vital event
37 registry to do research on births in the Bountiful
38 community.
39 A Are you referring to the method that I used to
40 come up with -- I'm not --
41 Q Yes. Yes, what's called cohort 3 in the
42 affidavit?
43 A All right. So what I did to come up with
44 cohort 3, my -- the original question that I was
45 asked was for information around polygamous
46 communities. So I went -- I looked for all
47 instances where it was apparent that there was
27
1 practising polygamy. I identified the family

2 names of the father in those instances and I came
3 up with a grouping of a certain number of fathers.
4 That, however, had outliers in it. There were
5 certain surnames that were very common so I had to
6 take that to an additional level of verification.
7 We then compared that information to
8 information that -- to any births that were
9 registered at the Bountiful midwifery clinic for
10 the purposes of validation.
11 We then took the mothers involved in those
12 events and started looking at their place of usual
13 residence. We identified certain geographical
14 areas that were common to the Bountiful community.
15 We then cross referenced against educational
16 records, simply verifying that we hadn't left out
17 or needed to include certain fathers' names.
18 By the time we had finished all of those steps
19 we had come down to a certain number of records as
20 well as a certain number of -- that were split
21 into regular events and teen pregnancies. We did
22 a manual adjudication on -- wherever we saw
23 discrepancies as well as the teen pregnancies.
24 The reason for that manual adjudication was to try
25 and ensure that there was no chance of having a
26 false positive in there.
27 We -- at the end of it we had a group of 15
28 surnames we had all of the events from there. I
29 think I've covered everything. I'm just rambling
30 on now.
31 Q It is covered in some detail in your affidavit?
32 A Yeah.
33 Q Can I ask you to clarify though, in terms of the
34 final search parameters and final cohort were you
35 only looking at births in polygamous families or
36 also in monogamous families?
37 A Well, polygamous activity is where we started, but
38 we were identifying family names and there were
39 many individuals within those family names that
40 were part of the Bountiful community that were not
41 involved in polygamy. So while my entire
42 affidavit could perhaps under-report in all
43 instances because we were so cautious, it was not
44 focussed on polygamous only. It did however start
45 off with family names of individuals that were
46 involved in polygamous activity.
47 Q Okay. And when you say involved in polygamous
28
1 activity, do you mean presumably on the basis that

2 it's one father having children with multiple
3 women?
4 A Multiple wives, correct.
5 Q Which could conceivably also be serial
6 monogamists?
7 A Well, we tried to exclude serial monogamists by
8 looking at the timeframes of the births, ensuring
9 that they did overlap. Also, that is one of the
10 reasons that we went to the geographic location of
11 the mother because that narrowed it down
12 considerably in terms of the number of events that
13 we were looking at. I'm fairly confident that we
14 eradicated all instances of serial monogamists in
15 the data before we put the figures together.
16 Q And can you say anything generally about your
17 confidence level or what you see as the margin of
18 error in this research project? I assume
19 obviously you have a margin of error, but...
20 A The project does have a margin of error. My
21 confidence level is that it would be very small
22 and that is based on the number of iterations that
23 we went through the data before -- the way that we
24 do this is we draw up the base data set, which is
25 referred to in the affidavit as a cohort, and then
26 we draw the figures based on that cohort. Before
27 drawing the figures we went through so many
28 iterations on that cohort eradicating any outliers
29 or false positives. This is why I said I'm far
30 more confident that we have been overly cautious
31 on our figures than I am that anything would be
32 inflated.
33 Q Okay. And can I ask you to turn to the table on
34 page 13 in your affidavit number 1. It's entitled
35 "Cohort 1 British Columbia births"?
36 A Yeah.
37 Q Can you explain generally what information this
38 table conveys?
39 A Okay. So the table is very basically raw counts
40 or percentages. Column 1 is the year in which
41 the -- in which the event was registered.
42 Column 2 is the number of births that occurred
43 within that year. Column 3 is the number of teen
44 births that occurred within the year. Column 4 is
45 a very simple percentage of teen births based on
46 column 2 and 3. Column 5 is the number of mothers
47 that were resident outside of Canada. Column 6 is
29
1 the percentage of the mothers resident outside of

2 Canada. Column 7 is the number of mothers born
3 outside of Canada. Again, 8 is percentage of that
4 column. Column 9 is the average age difference
5 between parents. Column 10 is the average age
6 difference between parents where that birth was a
7 teen birth.
8 Q Okay. What do you the asterisks mean?
9 A What the asterisks mean is that we had an exercise
10 to go back and capture certain data after we moved
11 to the current version of the vital statistics
12 registry. The father's age was not an important
13 field either for identity purposes and it was not
14 captured into the electronic registry so I did not
15 have it readily available to calculate those two
16 columns prior to 1993. I could have gone back and
17 looked at all of the original records and had that
18 captured but we did not have the time for that
19 undertaking, and I considered '94 onwards to be
20 sufficient information for the affidavit.
21 Q And what is cohort 1 BC births?
22 A Cohort 1 is all births that occurred within the
23 province of British Columbia.
24 Q Okay. May I ask you to turn over the page to the
25 table on page 14, which is cohort 2. I won't ask
26 you to go through each of the columns again
27 because they're the same as the previous table,
28 but can you explain what this cohort is.
29 A Cohort 2 is births that occurred where the mother
30 indicated that she was resident within Cranbrook
31 or Creston local health areas. There is a -- a
32 very quick distinction we don't look at where the
33 birth occurred because major birthing hospitals
34 are centered in places that would skew numbers.
35 We look at where the mother was resident, and that
36 is the common way of looking at the geographical
37 view of birth information.
38 Q And what is a local health area?
39 A I don't know what the official definition is.
40 It's simply a health area that is -- I know that
41 it is defined in legislation to have a health
42 officer to be the responsibility of a particular
43 health authority.
44 Q But is it a geographical area?
45 A A geographical area, yes.
46 Q A search term you can use?
47 A Yeah, it's a geographical area.
30
1 Q Okay.
2 A We used the Creston and Cranbrook areas because
3 those were the two areas that the surrounded the
4 Bountiful community and it gave us a -- the
5 picture with an accurate comparison. All of the
6 figures that are included in the Bountiful cohort
7 will be in these figures as well.
8 THE COURT: Let's take the break at that point. Thank
9 you.
10 THE CLERK: Order in court. Court is adjourned for the
11 morning recess.
12
13 (WITNESS STOOD DOWN)
14 (MORNING RECESS)
15
16 THE CLERK: Order in court.
17 THE COURT: Thank you. Ms. Bevan.
18 MS. BEVAN: Thank you, My Lord. I have just a couple
19 more questions.
20
21 EXAMINATION IN CHIEF BY MS. BEVAN: (Continuing)
22 Q Where we left off, Mr. Klette, we were on page 15
23 of the table of Bountiful births. I won't ask you
24 to explain that because you have already gone
25 through your methodology in that regard and
26 explained the format of the table anyways.
27 So what I wanted to ask you was, at
28 paragraph 43 in your affidavit you've given a
29 percentage there of the teen births as a
30 percentage of total births, and at paragraph 47
31 you have given a related percentage of mothers who
32 gave birth as teens. And I wanted to ask you, is
33 that the same as a teen pregnancy rate?
34 A No, it's not. These are simple percentages of the
35 population. A teen pregnancy rate would require a
36 denominator to calculate an understanding of the
37 number of teens within the particular cohort. We
38 did not have a denominator for cohort 3 for the
39 Bountiful cohort.
40 Q And finally, at paragraphs 44 through 57 in your
41 affidavit number 1 you've given some numbers on
42 distinct mothers and fathers in the Bountiful
43 cohort. Can you explain briefly what was involved
44 in generating those numbers from the birth
45 registration data as distinct from what came prior
46 in your affidavit?
47 A Yeah. So as I mentioned the vital event registry
31
Cross-exam by Mr. Dickson
1 stores all of the parties to an event separately.

2 This is for privacy reasons. If a member of the
3 clerical staff went and looked at a particular
4 birth they would only see information that is
5 relevant to that birth. They would not see a
6 mother's history across her entire life linked
7 together. However, for the information on this
8 affidavit that was required in that section, we
9 had to make those links. So we had to take
10 mothers, fathers on an event, link them across,
11 see how many children they'd had across an entire
12 span that the affidavit talks to. In doing that
13 linkage you do get a lot of discrepancies in the
14 information, and it's not that the information is
15 incorrect. It's just people do change names that
16 they use. This sometimes might -- if you ask
17 somebody a question twice about where they're born
18 they may say they're born in a suburb of a city on
19 one occasion but name the city on the other
20 occasion. These are all things that have to be
21 resolved to make those linkages accurate. It's
22 very time consuming and it's a large part of the
23 type of work that Pop Data do for the academic
24 community. We took it on for this project to come
25 up with figures around distinct family units and
26 particularly mothers and fathers.
27 MS. BEVAN: Okay. Thank you, those are my questions.
28 THE COURT: Thank you. Mr. Dickson.
29 MR. DICKSON: I understand that there's no cross from
30 this side of the floor.
31 MR. OLTHUIS: That's correct, My Lord.
33 MR. DICKSON: So I will proceed.
34
35 CROSS-EXAMINATION BY MR. DICKSON:
36 Q Mr. Klette, my name is Tim Dickson I'm counsel for
37 the amicus curiae in this proceeding. I believe
38 that you have testified already that you are not a
39 demographer?
41 Q When you were asked by Ms. Bevan to carry out this
42 research am I correct in thinking that you had no
43 special knowledge of fundamentalist Mormonism?
45 Q Or Bountiful?
46 A Beyond knowing of it, no, I had no specialist
47 knowledge.
32
1 Q Or Mormonism more generally?

2 A No.
3 Q Or polygamy more generally?
4 A Again, I know what polygamy is, familiar with it
5 in a number of different cultures but I have no
6 specialist knowledge, no.
7 Q In the research that you present in your affidavit
8 number 1 you compare various statistics relating
9 to three cohorts, cohort 1 being all BC births?
10 A Yeah.
11 Q Cohort 2 being all births in the Creston and
12 Cranbrook local health areas?
13 A Yes.
14 Q And cohort 3 consists of those births that you
15 identify with Bountiful; is that correct?
16 A Yes.
17 Q Did anyone suggest to you to use these three
18 cohorts?
19 A No.
20 Q I wanted to ask you a few questions about your
21 construction of cohort 3. In -- at paragraph 31
22 of your first affidavit in the last sentence you
23 note that you included fathers' surnames and
24 respective births where the place of birth was
25 specifically indicated as the Bountiful midwifery
26 clinic. Did anyone suggest to you to examine
27 births at the Bountiful midwifery clinic?
28 A I believe -- to the best of my recollection I
29 believe that that institution was mentioned to me.
30 Q Do you remember who mentioned it to you?
31 A I believe that it was mentioned by Ms. Bevan.
32 Q And at paragraph 32 you note that you examined a
33 spreadsheet of students at the Bountiful
34 Elementary-Secondary School and the Mormon Hills
35 school for certain years?
36 A Yes.
37 Q And you note that the spreadsheet was provided to
38 you by Ms. Bevan?
39 A M'mm-hmm.
40 Q And did she suggest to you that it would be useful
41 to you in this research?
42 A She didn't suggest it would be useful. By being
43 given it we assumed that.
44 Q Did you take any steps to verify the accuracy of
45 that spreadsheet?
46 A No, we actually -- we placed very little weight on
47 the information on the spreadsheet, merely using
33
1 it as a verification. I was not familiar with the

2 data and if I'm not familiar with the accuracy of
3 the data I tend not to rely too heavily on it.
4 Q I want to turn to asking you a little bit about
5 the comparisons that you draw between the three
6 cohorts?
7 A M'mm-hmm.
8 Q You'll agree with me that cohorts 1 and 2 are
9 geographically defined?
10 A Correct.
11 Q Cohort 1 relates to the geographic area of BC?
12 A Yes.
13 Q And cohort 2 relates to two geographic areas?
14 A Yes.
15 Q In the local health areas of Creston and
16 Cranbrook?
17 A M'mm-hmm.
18 Q Cohort 3 on the other hand relates to a community;
19 would you agree?
21 Q And that's what you call the community of
22 Bountiful?
23 A Yes.
24 Q Well, I think of Bountiful as having two
25 communities since 2002. Do you know anything
26 about that?
27 A No, I'm not familiar -- well, I have heard and I
28 have made certain assumptions from what I have
29 heard, but I am not familiar with the -- with the
30 details around that.
31 Q You're not -- you don't have special knowledge of
32 Bountiful as you said earlier?
33 A No.
34 Q You have -- sorry. Would you agree, Mr. Klette,
35 with me that a defining feature of the Bountiful
36 communities is some sort of shared culture?
37 A In the way that this cohort is being assembled?
38 Yes.
39 Q For instance you'll agree with me the Bountiful
40 communities are fundamentalist Mormon communities?
41 A I'm not aware if there are individuals that are
42 not of that faith living in that community.
43 Q You didn't study --
44 A But for cohort 3 I would assume that they are,
45 yes.
46 Q Their religious beliefs is not a matter that you
47 took into consideration in constructing cohort 3?
34
1 A No, I was purely looking at the data and the

2 relationships between the individuals on the birth
3 records, when those occurred and using that to
4 identify polygamous behaviour, taking those names
5 and then including all births, polygamous and
6 monogamous, where the wives were in -- indicated
7 they lived in a particular area or rather the mums
8 indicated they lived in a particular area, and the
9 father's family names fell within that grouping.
10 So it would include polygamous and monogamous
11 relationships with a relationship where the
12 fathers have particular names and the mothers live
13 within particular geographical regions.
14 Q Mr. Klette, would you agree with me that cultural
15 factors can affect rates of teen pregnancy?
16 A That's not really my area of expertise.
17 Q You're not a demographer?
18 A No.
19 Q And you don't -- you don't look at cultural causes
20 of the various --
21 A No.
22 Q -- vital events?
23 A I don't tend to interpret the data.
24 Q Fair enough. Now, I'm not going to ask you as an
25 expert in that, you're not. But just as a
26 layperson, would you expect that cultural factors
27 could affect rates of teen pregnancy?
28 A Yes.
29 Q And do you have any awareness of the rates of teen
30 pregnancy among Aboriginal persons in Canada?
31 A Again, I have an awareness. I'm not an expert in
32 that area. It's not something that I could talk
33 to. You know, it's a very wide area. When you
34 say Aboriginal, a person may be an Aboriginal
35 living in a setting that is culturally very
36 similar to their origins. They may be an
37 Aboriginal living in the middle of a large city
38 and their particular culture in no way. So I
39 would assume that would affect that. Yeah, I
40 don't think I could categorically state that I'm
41 familiar with that type of information.
42 Q You would assume from what I'm hearing that the
43 kind of urban or rural environment that a person
44 is living in might affect rates of teen pregnancy?
45 A It may.
46 Q Back on Aboriginal persons. I've seen a 2008
47 Statistics Canada report that states that among
35
1 women who reported an Aboriginal background

2 24 percent were teenage mothers compared to
3 10 percent of other mothers. Would you have any
4 reason to doubt that?
5 A To doubt the figures? No.
6 Q I want to -- I want to hand up a document we
7 obtained from the internet from vital statistics.
8 I will hand up two copies.
10 MR. DICKSON:
11 Q As you can see, Mr. Klette, from the cover page
12 here this is a "Regional Analysis of Health
13 Statistics for Status Indians in British
14 Columbia" --
15 A M'mm-hmm.
16 Q -- "From 1992 to 2002," and you can see in the
17 bottom right corner that it's the BC Vital
18 Statistics Agency.
19 A Yeah.
20 Q Would you agree with that?
21 A I would.
22 Q And you can see the publication information three
23 pages in?
24 A Yeah.
25 Q If you just turn to -- I have included the preface
26 and the table of contents, but it's a long
27 document and so I have just after that in
28 substance included page 17. And there you can see
29 figure 16 in the top right corner, Mr. Klette, on
30 page 17. The page number is in the bottom right
31 corner?
32 A Okay. Yeah.
33 Q It's two pages from the back. And in figure 16
34 you can -- you can -- figure 16 sets out live
35 birth rate for teenage mothers by the health
36 service delivery area for status Indians, and
37 that's in the grey, and for other residents, and
38 that's in the black?
39 A M'mm-hmm.
40 Q Do you agree?
41 A Yes.
42 Q And obviously what this figure shows is -- are
43 much higher rates of teen pregnancy for status
44 Indians as opposed to other residents; would you
45 agree with that?
46 A Correct. That's what they show.
47 Q And I think there's a provincial total sort of
36
1 midway on the left on these headings and it seems

2 to indicate 184.5 teen pregnancies per 1,000 live
3 births?
4 A M'mm-hmm.
5 Q For status Indians?
6 A M'mm-hmm.
7 Q Would you agree? And -- versus 38.8 teen births
8 per 1,000 live births for other residents; is that
9 correct?
10 A Yeah.
11 Q And perhaps an easier way of reading this for me
12 is that that means something like 18.45 percent of
13 live births are teen births for status Indians and
14 3.88 percent for other residents?
15 A M'mm-hmm.
16 Q That is correct? That is correct, Mr. Klette?
17 A Assuming the math is correct, yeah.
18 MR. DICKSON: Can I have this marked as the next
19 exhibit.
20 MR. JONES: Well, perhaps I can speak to that, My Lord.
21 Mr. Klette has indicated that he doesn't recognize
22 the document. He's premised his answers on the
23 assumption that it's correct. If he were an
24 expert then it would be up to my friend
25 Mr. Dickson to prove this document and these
26 statistics otherwise. I am not particularly
27 concerned about what they say. I'm a little
28 concerned about the line of questioning going to
29 teen pregnancy rates when Mr. Klette has indicated
30 that that's absolutely not what his evidence is
31 addressing.
32 So putting to him an unfamiliar document about
33 teen pregnancy rates which is outside the scope of
34 his affidavit when he's already indicated that he
35 doesn't recognize the document and can't attest to
36 its accuracy, I just don't think it's proper. I
37 think it should be marked as an exhibit for
38 identification.
39 THE COURT: Well, it is from his agency, isn't it?
40 MR. DICKSON: It is, My Lord, and as he confirmed. And
41 he noted the publication information on the third
42 page as well.
43 MR. JONES: Well, I'm not sure if that's sufficient to
44 prove it.
45 THE COURT: Well, it wouldn't be the first report that
46 we have received in this manner. It seems to me,
47 as I understood his evidence, he's in charge of
37
1 the basic information that went in -- to form the

2 study that was apparently in part authored by his
3 own agency so from that point of view I think it
4 should be marked.
5 MR. DICKSON: Thank you, My Lord.
7
8 EXHIBIT 153: 12 page p/c document Regional
9 Analysis of Health Statistics for Status Indians
10 in British Columbia, 1992 - 2002
11
12 THE COURT: And counsel will have to tell me at some
13 point what the difference is between marking it
14 for identification and marking it -- as far as my
15 use of the document goes in the final judgment.
16 THE WITNESS: May I make a comment on this document,
17 My Lord?
18 THE COURT: Yes.
19 THE WITNESS: This document was produced by the Vital
20 Statistics Agency sometime back. At the time
21 there was a group that was responsible for health
22 statistics. I was not part of that group. It was
23 prior to my tenure with the agency by and large.
24 THE COURT: I see.
25 THE WITNESS: That group was removed and is now part of
26 the Ministry of Health. We are no longer in the
27 business of providing statistical data of the
28 nature that is outlined in this report, which is
29 why, as I say, I can make assumptions that the
30 report is accurate but I have no detailed
31 knowledge in the preparation of these statistics
32 in this report.
34 MR. DICKSON:
35 Q Just on that, Mr. Klette, on the -- I'm sorry, the
36 page right after the preface in this document.
37 There's a largely blank page that says at the
38 bottom -- yes, the page following the preface.
39 Yes. Largely blank page that says at the bottom
40 "this publication is also available on the agency
41 website" and that's -- that is the vital
42 statistics --
43 A Correct.
44 Q -- web address. Thank you.
45 Mr. Klette, would you agree with me that a
46 religious affiliation might also be expected to
47 affect rates of teen pregnancy?
38
1 A No.
2 Q You would not agree?
3 A No, I have no knowledge of that, so ...
4 Q Again you're not a demographer. You don't
5 interpret the data?
6 A Correct. Are you asking me in a layman capacity
7 or?
8 Q That's right.
9 A I wouldn't think so. I don't have much knowledge
10 to base it on, but yeah.
11 Q Very well. I would like to hand up a -- just an
12 article that reports on a recent study in the
13 United States. This is an article that I found on
14 the internet yesterday from MSNBC.com. And it
15 reports on an American study as I said, and the
16 title is "Teen Birth Rates Highest in Most
17 Religious States." And I want to just put it to
18 you first before we look at the document actually,
19 that one way that religion might be expected to
20 increase teen pregnancy relative to other
21 communities is if the religious norms of that
22 community are effective at discouraging
23 contraception but perhaps less effective at
24 discouraging teen sex. Would that make sense to
25 you from a lay perspective?
26 A Yeah.
27 Q Another way that religion might be expected to
28 increase teen births relative to other communities
29 is by discouraging abortions?
30 A I don't think that that would be significant
31 enough to have an effect on -- a noticeable effect
32 on teen pregnancies. The abortion rates are very
33 low.
34 Q Very well. If we turn then to the article and --
35 the article that I handed up, and you will see
36 that the first paragraph reporting on this study
37 says:
38
39 US states whose residents have more
40 conservative religious beliefs on average
41 tend to have higher rates of teenagers giving
42 birth, a new study suggests.
43
44 And in paragraph 2:
45
46 The relationship could be due to the fact
47 that communities with such religious beliefs,
39
1 a literal interpretation of the Bible for

2 instance, may frown upon contraception,
3 researchers say, if that same culture isn't
4 successfully discouraging teen sex the
5 pregnancy and birth rates rise.
6
7 And that's the point that I first made to you;
8 would you agree?
9 A Viewed at in isolation I would say that that
10 statement seems to make sense.
11 Q And then you will see that there's two bolded
12 headings on this first page and the second one
13 says "More Abortions among Teens in Less Religious
14 States." And the paragraph underneath that
15 heading says:
16
17 For instance, the results showed more
18 abortions among teenagers in the less
19 religious states which would skew the
20 findings since fewer teens in these states
21 would have births. Even after accounting for
22 the abortions the study team still found a
23 states' level of religiosity could predict
24 their teen birth rate. The higher the
25 religiosity the higher was the teen birth
26 rate on average.
27
28 Does that -- do those general statements --
29 would they surprise you? Those findings?
30 A I'm surprised that they -- sorry.
31 MS. BEVAN: My Lord, I'm sorry, I would like to object
32 to this line of questioning. We haven't put
33 Mr. Klette in as an expert demographer, that's
34 very clear, and I feel my friend is trying to
35 shoehorn expert evidence he should have put in
36 through this witness who is not an expert in the
37 area, who is a layperson. He's been asking to
38 speculate in areas where he doesn't have
39 expertise.
40 THE COURT: It's not the first time that has happened
41 in this courtroom, to recognize the elephant in
42 the courtroom. But the fact is your friend was
43 taken by surprise with the lateness of the
44 evidence. I'm going to give him a fair bit of
45 latitude. I appreciate that the witness is simply
46 giving his lay view. It may be more effective,
47 Mr. Dickson, if we simply consider this part of
40
1 your Brandeis brief.

2 MR. DICKSON: Fair enough, My Lord. I would be content
3 with that. I would like to mark this document if
4 I could as an exhibit. I well understand the
5 weight that would be attributed to --
6 THE COURT: Well, I'm going to mark it as though it
7 were part of the Brandeis brief, so that's the
8 weight we'll give it.
9 MR. DICKSON: Very well, My Lord.
11
12 EXHIBIT 154: 2 page p/c article titled "Teen
13 birth rates highest in most religious states" by
14 Jeanna Bryner dated 08/02/2011 at bottom right
15 corner
16
17 MR. DICKSON:
18 Q So just returning to the basic theme of this
19 article and this -- these few questions, this
20 article is -- this study that the article is
21 reporting on is finding a relationship between
22 religiosity and rates of teen births; would you
23 agree?
24 A That's what it is claiming to find. I find it
25 fairly surprising that it's doing that.
26 Q Very well. And you don't -- you're not basing
27 that surprise on demographic expertise, as you
28 say?
29 A No, there are so many -- there are so many other
30 things which impact things such as abortion rates
31 especially in a country like the States where the
32 access to clinics for people may differ from state
33 to state. To make such a broad sweeping statement
34 that there's a tie between religion and the number
35 of abortions that are carried out I find -- I'm
36 just surprised that a researcher would take it
37 that far to make such a statement. It's not
38 something I have seen common to -- to research
39 studies that are conducted here in Canada.
40 Q You're surprised by the tie between religion and
41 the rates of abortion?
42 A Correct.
43 Q You're less surprised, or not surprised I think,
44 by the tie between rates of religion and teen
45 births; is that correct?
46 A Again, it's -- it applies to -- it applies to a
47 country the size of the States where there's a lot
41
1 more than simply religion. I think a lot of

2 people -- my lay opinion is that a lot of people
3 that I know that practice religion I would not
4 expect to see a difference in teen pregnancy
5 rates. I think that there are socioeconomic and
6 cultural aspects that might have more of an impact
7 such as average income, and you're looking at a
8 situation where you may have more religion in
9 certain states that are poorer and you may have an
10 a higher teen pregnancy. To therefore simply say
11 that the religion is the reason for it I don't
12 think is looking at the whole picture. That is my
13 lay opinion.
14 Q You would expect there to be a relationship
15 between average income and rate of teen pregnancy?
16 A I would think that there would be, yes.
17 Q And going back to religion, I think it's clear
18 from the evidence that we have heard in this
19 courtroom that the Bountiful communities are
20 heavily fundamentalist Mormon?
21 A Yes. I would assume so.
22 Q You said that you assumed that?
23 A Yeah.
24 Q Do you know whether fundamentalist Mormonism tends
25 to discourage contraception?
26 A I don't.
27 Q Or abortion?
28 A I don't. I'm not very familiar with the Mormon
29 faith. There is not nearly as large a Mormon
30 community in the country that I emigrated from, so
31 ...
32 Q And your research did not try to control for
33 religious factors, did it?
34 A No.
35 Q And your research more generally has not tried to
36 control for other cultural factors that might
37 influence teen pregnancy in the Bountiful
38 community; is that correct?
39 A Well, it hasn't tried to control for it, but that
40 is one of the reasons that cohort 2 was provided.
41 To give a control group that had a similar
42 geographic location, and you would expect to have
43 similarities in culture to compare against.
44 Q You didn't examine as between cohort 2 and
45 cohort 3 relative income levels?
46 A No.
47 Q Now, and you didn't compare cohort 3 to Aboriginal
42
1 populations living on reserve, did you?

2 A No.
3 Q And more generally, when you were looking for
4 comparators to cohort 3 you did not search for
5 communities that are relatively small and
6 isolated. Would you agree with that?
7 A Could you repeat the question.
8 Q Certainly. When you were constructing your
9 control comparison --
10 A M'mm-hmm.
11 Q -- group for cohort 3 --
12 A M'mm-hmm.
13 Q -- you did not specifically search for communities
14 that are relatively small and isolated?
15 A No, I didn't.
16 Q And I want to draw your attention --
17 A I used those particular local health areas because
18 they encompass the regions that --
19 Q Right.
20 A -- the mothers in cohort 3 claim to be resident.
21 Q Right. They're in the general geographic area?
22 A Yeah.
23 Q And I want to hand up to you another document.
24 This one again from the BC Vital Statistics
25 Agency. This document as you can see is Health
26 Status Indicators in British Columbia. Subtitled
27 Birth-related and mortality statistics, 1991 to
28 1995 and it appears to be volume 3, "Communities."
29 Do you agree?
30 A Yes.
31 Q And you see there in the bottom right-hand corner
32 again the Vital Statistics logo?
33 A Yes.
34 Q Is that correct? You will agree that this is a
35 vital statistics -- a BC Vital Statistics Agency
36 document?
37 A Correct.
38 Q And if you turn over the page you'll see it was
39 published in 1997; is that right?
40 A Yes.
41 Q Now, if you turn to the forward, which is just the
42 fourth page of this document, the first sentence
43 says:
44
45 This is the third and final volume in the
46 updated series Health Status Indicators in
47 British Columbia, presenting birth-related
43
1 and mortality statistics by incorporated

2 communities for the period 1991 to 1995.
3
4 Do you see that?
5 A Yes.
6 Q And what this document does, as I see it, is
7 present these health status indicators for local
8 health area?
9 A M'mm-hmm.
10 Q And then it's further broken down by municipality,
11 I guess, incorporated community?
12 A I'm not familiar with this document. I am
13 familiar with the kind of indicators that would be
14 in here but I am not familiar with this particular
15 document.
16 Q Very well. And I just want to ask you about some
17 of the kinds of indicators. It's a long document.
18 I've just extracted some of the pages pertaining
19 to a few local health areas.
20 A M'mm-hmm.
21 Q And I would like to ask you about them. If you
22 turn to page 227. The page number is at the
23 bottom?
24 A Yeah.
25 Q This is the local health area for Terrace, and you
26 will see on the left column that there are a
27 number of statistics -- or a number of indicators,
28 I should say, that are listed there. And then
29 going across the columns are, of course, the
30 years, 1991 through '95, and then the far right
31 column is a total for that period?
32 A M'mm-hmm.
33 Q And you see "teenage mother" on the left. The
34 first one after the "live births"?
35 A M'mm-hmm.
36 Q You see that? And if we go over to the far right
37 column you will see the rate is 134.34? Is
38 that -- do you see that?
39 A Yeah.
40 Q And will you agree with me that what that means is
41 that there are 134.34 -- sorry, let me say it
42 another way. Of 1,000 live births 134.34 of them
43 are to teen mothers; would you agree with that?
44 A Yes.
45 Q And if we turn over the page here are the
46 statistics for the village of Hazleton, and again
47 if we look at just the total for the period the
44
1 rate -- sorry, the total rate for the period of

2 teen births it's now 220.34 per thousand live
3 births?
4 A Yes.
5 Q And if you turn over the page and this is New
6 Hazleton and again there the rate is 119.66; is
7 that correct?
8 A M'mm-hmm. It is.
9 Q And if we flip over two more pages until we get to
10 Nisga'a. I take it this is relating to the
11 Nisga'a territory, and you can see -- you can see
12 in the bottom left-hand corner there's a map
13 telling you where this local health area is. But
14 here the rate is -- 13 moms is 209.18 out of
15 1,000?
16 A Yes.
17 Q And again if we turn the page over -- sorry, two
18 pages over to Telegraph Creek, and again on the
19 map in the bottom left-hand corner you can see the
20 area of Telegraph Creek, the rate here is 200 per
21 1,000?
22 A Yes.
23 MR. DICKSON: Chief Justice, I would like to mark this
24 as the next exhibit if I may.
25 THE COURT: Yes. Thank you.
27
28 EXHIBIT 155: 20 page p/c document titled "Health
29 Status Indicators in British Columbia,
30 Birth-Related and Mortality Statistics 1991-1995"
31
32 THE COURT: Does it have the Cranbrook/Creston area?
33 MR. DICKSON: It doesn't there, My Lord. I would be
34 happy to provide the entire document. It was --
35 it was 250 pages.
36 THE COURT: I'll leave that to your friends to ask if
37 they want you to do that.
38 MR. DICKSON: Very well. Thank you, My Lord.
39 Q And in terms of the comparisons that you're making
40 with cohort 3, you've looked at the province as a
41 whole in cohort 1?
42 A M'mm-hmm.
43 Q And in cohort 2 you looked at the Cranbrook and
44 Creston areas?
45 A Yes.
46 Q And I'm going to suggest to you that if we look at
47 all the local health areas in the province that
45
1 you see quite a lot of diversity in teen pregnancy

2 rates. Would you agree with that?
3 A I'm not familiar with the figures. I assume there
4 would be diversity.
5 Q You haven't looked at the figures relating to all
6 of the local health areas in the province?
7 A I don't know off the top of my head the teen
8 pregnancy rates for all the local health areas. I
9 assume there would be a diversity though.
10 Q Right. When you were comparing -- when you were
11 looking at cohort 3?
12 A M'mm-hmm.
13 Q And its results on teen pregnancy.
14 A M'mm-hmm.
15 Q You didn't look to other local health areas beyond
16 Cranbrook and Creston to determine whether
17 cohort 3 is an outlier, for instance?
18 A I think we may have looked at -- just generally
19 taken a scan of the -- of those figures. I'm not
20 quite sure what the question is you're asking so
21 maybe ask again. I'm not being able to give you
22 the information that you need maybe.
23 Q Well, perhaps what I'll do is just hand up one
24 last document and ask you in that context.
25 Mr. Klette, as I understand it the vital
26 statistics office issues quarterly digests with
27 standard tables of vital event statistics for each
28 local health area; is that correct?
29 A Currently those are issued on our behalf and with
30 our authority. We don't put the statistics
31 together anymore. They are put together by the
32 Ministry of Health.
33 Q I see.
34 A However, I think that's just a technicality. The
35 data that is used for putting those reports
36 together does come from us.
37 Q Very well. And it's available on your website?
38 A Correct, yes.
39 Q At the bottom of this document that I've just
40 handed up you can see the web address at which it
41 is obtained?
42 A Yes, it is on our website.
43 Q Very well. Now, this is sort of a blurry printout
44 at the top, on the first page here. So at the
45 third page there's an option where you can print
46 it out as an Excel spreadsheet and so I did that
47 because it's a little bit clearer. And this
46
1 document is the quarterly digest for the last

2 quarter of 2009. You can see that from the top
3 right of the page. Do you see that? It says
4 "quarterly digest for 2009"?
5 A Yes.
6 Q Would you agree that this is from the last quarter
7 of 2009?
8 A Yes.
9 Q And just underneath --
10 A Well, possibly not. I'm trying to recall whether
11 they use a statistical reporting year that ties in
12 with a financial year or whether that's just a
13 close-off of the data. I think it is. I'm not
14 100 percent sure.
15 Q Okay. Very well. And the reason I think it is
16 is -- well, because I looked at a few of these.
17 A Okay.
18 Q And you will see right in the top right of the
19 document underneath the "quarterly digest"
20 heading?
21 A Yeah.
22 Q It says that there are two periods listed there;
23 do you see that?
24 A Yeah.
25 Q It says October 1st to December 31st, 2009.
26 A Yeah.
27 Q And then dropping down just underneath that is
28 year end 2009; do you see that?
29 A Okay.
30 Q What that year end 2009 notation refers to I
31 believe are the figures set out on this page that
32 are for the entire year; would you agree with
33 that?
34 A As I said I didn't prepare the document. There
35 are a number of reporting periods that are used
36 for these statistical documents. Unfortunately I
37 can't get back and check. If I was asked this
38 question in a work situation I would go back,
39 confirm the facts and then return back. So I'm
40 loathe to say, yes, it is the entire year without
41 being able to verify that.
42 Q I understand.
43 A If -- is this from the -- taken from the annual
44 report?
45 Q Well, no, it's taken from the website.
46 A Or is it taken from the quarterly reports.
47 Q From the quarterly reports?
47
1 A Yeah. You see --

2 Q I'm not sure that there is a final annual report
3 for 2009. There may be.
4 A There is a final annual report for 2009 which is a
5 different report.
6 Q I see.
7 A So I'd need to go back and check the figures in
8 that to see how it correlates with this quarterly
9 report.
10 Q Right. And yes, and I just couldn't find that.
11 A Okay.
12 Q I do note at the bottom of this page that says
13 there is a notation that says "columns that are
14 bolded and italicized represent year end totals."
15 You see the bottom left?
16 A Yeah.
17 Q Those words. Would you accept that?
18 A I would make that assumption, yes.
19 Q So if we look then at the numbers in the columns
20 where they are bolded and italicized those would
21 give us the numbers for the whole year; would you
22 agree with that?
23 A They would. However, they may only be accurate to
24 a certain reporting period. The -- what happens
25 is is that it takes time for events to be
26 registered and you get late reports that come in.
27 Because this is a quarterly report it may be an
28 interim report that doesn't cater for late
29 registrations. This is why we have a reporting
30 period on our yearly report that closes at fiscal
31 year end. It's also why when we do a yearly
32 report we take a data snapshot and if we do
33 running totals three years later there may be a
34 discrepancy. So while I'm quite comfortable to
35 say those could be year end totals they may not be
36 the same as our annual report.
37 Q Very well.
38 A Okay.
39 Q And why I want to ask you about this document is
40 just because it handily sets out all of the local
41 health areas on one page.
42 A M'mm-hmm.
43 Q And I'm really interested just in the sort of
44 relative rates.
45 A M'mm-hmm.
46 Q And so with that proviso perhaps I can ask you a
47 little bit about it. If you -- because when I
48
1 look at it I note that some of the rates for some

2 of the local health areas are quite a lot higher
3 than other ones; would you agree with that?
4 A Yes.
5 Q Number 10 Arrow Lakes is 212.5 percent; do you see
6 that?
7 A Yes. Are you looking for teenage mother --
8 Q Yes, sorry. Teenage mother under the "percentage"
9 columns and the bolded and italicized column which
10 I believe we accept constitutes a year end total?
11 A Yes.
12 Q At least when this was reported.
13 A M'mm-hmm.
14 Q And down number 27 Cariboo and Chilcotin, that's
15 11.3 percent. Do you see that, number 27?
16 A Yes.
17 Q And so what that is saying is that of all the
18 births, at least as of this reporting period, of
19 all the births in 2009, 11.3 percent of them were
20 to teenage moms?
21 A Yes.
22 Q And down at 51 Snow Country the percentage there
23 is 33.3; do you see that?
24 THE COURT: Sorry, where was that?
25 MR. DICKSON: Number 51, Snow Country, My Lord.
26 THE WITNESS: That is the figure but that is based on
27 one, so, yeah, it's...
28 MR. DICKSON:
29 Q And sorry, your point there is that low numbers
30 like one in a year doesn't give you much
31 confidence in the figure; is that correct?
32 A When it's looked at in isolation in that year, no.
33 Q If we go down to the next three 52 Prince Rupert
34 is 11.7; do you see that?
35 A I got 53 as Upper Skeena. Did you say 52 or 53?
36 Q I'm sorry, number 52 is -- Prince Rupert is 11.7.
37 A Yeah.
38 Q And number 53 Upper Skeena is 15.4?
39 A Yeah.
40 Q And 76, Agassiz Harrison, that appears to be 10.2?
41 A M'mm-hmm.
42 Q And Kitimat is 12; is that correct?
43 A M'mm-hmm.
44 Q Central coast is 13?
45 A Yes.
46 Q And Vancouver Island west, the next one down, is
47 25 percent?
49
1 A Yes.
2 Q Vancouver Island north is 16.4?
3 A Yes.
4 Q And Nisga'a, which we looked at in a different
5 context, that's 20 percent?
6 A M'mm-hmm.
7 Q Is that right?
8 A Yes.
9 Q And Telegraph Creek is showing that 22.2 percent
10 of all births that year were to teen moms; is that
11 correct?
12 A Yes.
13 MR. DICKSON: My Lord, I would like to mark this as the
14 next exhibit if I may.
17
18 EXHIBIT 156: 3 page p/c Selected Birth Statistics
19 by Local Health Area for October 1 - December 31,
20 2009
21
22 MR. DICKSON: I'll just be one more minute I think,
23 My Lord.
24 THE COURT: Sure.
25 MR. DICKSON:
26 Q And I think you covered this with Ms. Bevan in her
27 questioning, but if we go to paragraph 20 of your
28 affidavit number 1, Mr. Klette. This is where you
29 say that your research does not address the issue
30 of the teen pregnancy rate as compared to other
31 communities; is that correct?
32 A Yes.
33 Q And that's because you don't have reliable
34 denominator population data for the Bountiful
35 community?
36 A Correct.
37 Q And the uncertainty that Dr. Kendall identified at
38 paragraph 9 of his affidavit persists with your
39 research?
40 A May I have a look at what Dr. Kendall said.
41 Q Certainly. Do you have his affidavit?
42 A I have a copy of that, yes.
43 Q What Dr. Kendall says in that paragraph is:
44
45 After reviewing this conclusion I became
46 concerned that we could not be certain about
47 the teen pregnancy rates in Bountiful without
50
Re-exam by Ms. Bevan
1 more information. In particular I would have

2 liked information regarding the number of
3 girls aged 14 to 18 in Bountiful. This is
4 because an overrepresentation of teenage
5 girls in the community could account for or
6 at least offset the much higher numbers of
7 teen pregnancies.
8
9 A I would agree with that and I have said, stated I
10 would even take it one step further. Must I
11 elaborate on that?
12 Q Well, perhaps I'll just ask. What Dr. Kendall is
13 saying is that if a greater proportion of the
14 Bountiful population consists of teen girls than
15 is seen in cohorts 1 and 2, for instance, then the
16 percentage of teen births would not necessarily
17 tell us whether more teenage girls are becoming
18 mothers in Bountiful as opposed to the others?
20 MR. DICKSON: Thank you. Those are my questions.
22 THE COURT: Is there any further cross? No. Redirect?
23 MR. JONES: My Lord, perhaps just before Ms. Bevan
24 begins, and I expect she will be very brief, but
25 we have the opportunity, perhaps, I think we will
26 only have a few minutes to discuss this remaining
27 evidentiary matter. I don't know if Your Lordship
28 wants to press on for what will probably be 10 to
29 15 minutes total or come back after lunch to deal
30 with the evidentiary we're in your hands.
31 THE COURT: If we can deal with it now why don't we.
32 Madam Registrar, is that okay with you?
33 THE CLERK: Yes. My Lord.
34 MS. BEVAN: My Lord, I just have two brief questions.
36
37 RE-EXAMINATION BY MS. BEVAN:
38 Q Mr. Klette, if I can ask you to turn to this
39 exhibit which my friend handed you. I don't
40 recall the exhibit number now, but it was entitled
41 "Regional Analysis of Health Statistics."
42 A I believe that was taken back. Thanks.
43 Q And if you could turn to page 17, which my friend
44 asked you about.
45 A M'mm-hmm.
46 Q And you see under "births to teenage mothers"
47 there's a definition of teenage mothers, less than
51
Re-exam by Ms. Bevan
1 20 years of age?
2 A Correct.
3 Q And may I ask you to turn to this Exhibit "Health
4 Status Indicators," and it doesn't matter which of
5 these tables we refer to, so perhaps the first
6 one. Selected by the statistics for the province
7 of British Columbia on page 9.
8 A M'mm-hmm.
9 Q And you will see on the -- in the far left column,
10 fourth or fifth row down, "teenage mother less
11 than 20 years old"?
12 A Correct.
13 Q And if I can refer you then to paragraph 39 of
14 your affidavit number 1.
15 A Yes.
16 Q And your explanation of column 3 in your
17 definition of teen births?
18 A M'mm-hmm.
19 Q As I understand it that's a different definition
20 of teen births?
21 A Correct.
22 Q And Mr. Klette, if I can refer you for a moment to
23 this exhibit which was the MSN article on teen
24 birth rates.
25 A M'mm-hmm.
26 Q May I ask you this: There are studies that are
27 conducted on teen birth rates, teen pregnancy
28 rates, that look at teen sex. Then there's --
29 there's a question of teen girls having sex with
30 adult males, and would you -- are those the same
31 thing or two different things this?
32 A Two different things.
33 MS. BEVAN: Thank you. Those are my questions on
34 redirect.
35 THE COURT: Thank you. Thank you very much,
36 Mr. Klette.
38
39 (WITNESS EXCUSED)
40
41 MR. JONES: I think I may be holding the last piece of
42 evidence in my hand. This is the legislative
43 history brief, My Lord, and we have provided an
44 extra copy to Madam Clerk this morning.
45 THE COURT: Yes.
46 MR. JONES: And I'll let my friend express his case,
47 but I think I'll be able to summarize the decision
52
Discussion
1 that needs to be made.

2 The brief was, as Your Lordship knows,
3 directed by this court to provide to the parties
4 as an assistant -- as assistance in the
5 preparation for the reference. It consisted of
6 two volumes of supporting materials, mostly
7 legislation, Hansard debates and that sort of
8 thing. All on my review seem to be things that
9 the Court is entitled to take judicial notice of
10 for various matters before it.
11 So we have no concern if simply for the
12 purposes of ease of reference the two volumes of
13 supporting documents are marked as an exhibit in
14 the proceedings if it would be easier for people
15 to refer to Exhibit 147 as opposed to the
16 legislative history brief. The difficulty is that
17 the brief was filed with a covering document. I'm
18 sorry, the supporting materials were filed with a
19 covering document, and my understanding is my
20 friends would like that marked as an exhibit or at
21 least acknowledged as part of the record. And so
22 I guess we need some clarification on what
23 Your Lordship views the status of that document
24 is. It's kind of sui generis in a sui generis
25 proceeding.
26 My friends, if I think I can characterize
27 their position, is they just to ensure it goes up
28 as part of the record.
29 THE COURT: Okay. Well, I don't think I have a
30 covering document.
31 MR. JONES: I'm sorry, I've got a spare copy here. I
32 don't think that has any markings in it. So
33 perhaps with that, My Lord, I'll sit down and my
34 friend can express his position.
35 THE COURT: Sorry, you're content to mark the whole
36 bundle.
37 MR. JONES: Well, if it's to be marked as an exhibit,
38 My Lord, and I'm just -- a little cautious that
39 the document that you're holding in your hands is
40 not evidence.
42 MR. JONES: It's not a pleading the way I see it. It's
43 not anything --
44 THE COURT: Well, the document summarizes much of the
45 material.
46 MR. JONES: Almost all of that document is strictly
47 summary. If you look at paragraph 3, for
53
Discussion
1 instance, though, there is some editorializing if

2 I can put it that way.
3 THE COURT: Yes.
4 MR. JONES: And I guess my concern is that my friends
5 seek to give some legal status to that
6 editorializing and I just want us to be cautious
7 about what that is. It's at paragraph 3 and then
8 later on the other one that my friend pointed me
9 out to is paragraph 13 on page 3. There's nothing
10 in the legislative record to suggest that these
11 changes were intended to be substantive.
13 MR. JONES: I mean, that sort of thing, I just don't
14 think it's evidence. I don't think it's properly
15 an exhibit. And I would prefer simply not to have
16 that as part of it.
17 THE COURT: Ms. Herbst.
18 MS. HERBST: My Lord, as Mr. Jones has stated, our
19 fundamental concern is simply to ensure that this
20 is part of the record for posterity in this
21 proceeding.
22 The direction on -- or to the attorneys
23 general to prepare and file a legislative history
24 brief was set out in the case management order
25 from February of 2010 and the covering brief is
26 part of that -- of the bundle. The direction was,
27 and I can hand up a copy or simply read it out. I
28 believe it's also at the start.
29 THE COURT: Just read it out.
30 MS. HERBST:
31 On or before April 15th, 2010, the Attorney
32 General of British Columbia will prepare and
33 file a brief setting out the legislative
34 history of section 293 and its precedent
35 provisions along with copies of the
36 supporting documents.
37
38 Which suggests that there's a larger bundle, not
39 simply the supporting documents to be filed.
40 The cover document very helpfully does
41 summarize what follows in the attached documents
42 including the relevance of the particular
43 documents to the points at hand, so under a
44 particular provision setting out a summary of what
45 transpired with the legislation as it developed it
46 points to tab A and so on. So it's a nice
47 compendium.
54
Discussion
1 THE COURT: Would you be content if we mark the

2 covering document for identification and then mark
3 the volumes as evidence?
4 MS. HERBST: My --
5 THE COURT: See, your friend's point is --
6 MS. HERBST: Absolutely.
7 THE COURT: -- he gets a little comfortable when he
8 sees paragraph 3 which does contain their
9 submission.
10 MS. HERBST: Yes. By marking it as an exhibit, and my
11 discomfort with marking it for identification is
12 simply because of -- hearkening back to the
13 discussion of earlier this morning, I'm not quite
14 sure what status that then has for transmission as
15 part of the record.
16 Certainly the submission that we're making is
17 not intended to convert something that is probably
18 not -- probably the subject of expert evidence for
19 example, which is the Canadian law as it developed
20 into something more than it is. And the weight to
21 be given to this document is not something that we
22 want to set in stone by the marking of it or the
23 recognition that it belongs as part of the record.
24 On the other hand, there is a great deal of
25 legislative history that's already in the Brandeis
26 brief and it could be properly treated as such.
27 The other concern that I have is that, more so
28 than the other legislative history that is within
29 the Brandeis brief, given its filing date and
30 given its submission by the Attorney General, this
31 very much did set the framework for some of the
32 arguments and the evidentiary filings that
33 followed, and the decisions that were made in
34 terms of what to file. So as part of the record
35 it should be there so that it can be seen what was
36 filed in light of that.
37 THE COURT: Well, if it's marked for identification
38 it's part of the record. That just goes to what
39 the use that can be made of. So I'll mark the
40 volumes themselves as exhibits in the proceeding
41 proper and the covering memorandum for
42 identification.
43 MS. HERBST: Thank you, My Lord.
44 THE CLERK: That's Exhibit 157 for the two briefs.
45
46 EXHIBIT 157: 2 blue-covered cerlox briefs titled
47 "Section 293 Legislative History Brief"
55
Discussion
1 Volume 1 of 2: 1 page index; Tab 1 empty, A - C, 2

2 empty, A - C, 3 empty, A - C, 4 -6; p/c.
3 Volume 2 of 2: 2 page index; Tab 7 empty, A - P,
4 8, 9 empty, A, B; p/c.
5
6 THE CLERK: And Exhibit X for identification for the
7 covering.
8
9 EXHIBIT X: 10 page double-sided p/c Section 293
10 Legislative History Brief, undated
11
12 MR. JONES: Thank you, My Lord. Just two more very
13 brief questions from a housekeeping point of view
14 because this may be the last time we gather for
15 some time.
16 The first is Your Lordship discussed yesterday
17 the schedule for closing submissions. I think
18 we're going to be able to, as we have always been
19 able to do, work out our own schedule. My
20 assumption has been -- I think all of our
21 assumptions has been that the order of
22 presentation will probably follow the order of the
23 exchange of the written materials. I wanted to
24 invite Your Lordship if you have a different view
25 of what would be helpful to let us know.
26 THE COURT: I don't believe I do.
27 MR. JONES: Okay. And the final question was with
28 respect to the library that we have had
29 established just outside here. Do we have
30 permission to dismantle that now and take it away,
31 and would you -- and if so would you like it
32 resurrected during the closing submissions?
33 THE COURT: Is it a big job to resurrect?
34 MR. JONES: I don't think so, My Lord, no.
35 THE COURT: Okay. So let's take it away and let's put
36 it up again. Was it used very much?
37 MR. JONES: I don't really have any way of measuring
38 that.
39 THE COURT: Okay. Let's put it up again during
40 argument. That's so that citizens can look at the
41 documents that you're referring to.
42 MR. JONES: That's right.
43 THE COURT: So that concludes the evidence. Okay.
44 MR. JONES: With the possible exception of the Gabe
45 exhibit.
46 THE COURT: Right. But it certainly concludes the oral
47 evidence. Congratulations. Thank you very much.
56
Certification
1 We have an incredible record to base final

2 submissions on. Thank you. And we'll see you on
3 March 28th if not before.
4 THE REGISTRAR: Order in court. Court is adjourned
5 until Monday March 28th, 2011 at 10:00 a.m.
6
7 (PROCEEDINGS ADJOURNED AT 2:46 P.M.)
8
9 I, Spencer J. Charest, Official Reporter
10 in the Province of British Columbia, Canada,
11 do hereby certify:
12
13 That the proceedings were taken down by
14 me in shorthand at the time and place herein
15 set forth and thereafter transcribed, and the
16 same is a true and correct and complete
17 transcript of said proceedings to the best of
18 my skill and ability.
19
20 IN WITNESS WHEREOF, I have hereunto
21 subscribed my name this 28th day of February
22 2011.
23
24
25
26 ______________________
27 Spencer J. Charest
28 Official Reporter
29
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31
32
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1

Edward Vanderboom (for AGBC)

1 schools are required to establish evaluation

1 Education 8 and 9 Integrated Resource Package

1 additional elements of life skills for

1 Q And, in fact, it has a guide for independent

1 Q Mandatory obligation to report to a child welfare

1 about, the office of the inspector of independent

1 has been far greater than would normally be the

1 Q And am I correct that what is set out on page 1 is

1 A External evaluation report on Bountiful Secondary

1 bottom of that page again to health and career

1 Q And you have no knowledge as to whether that was

1 outcomes of the required curriculum.

1 dated Jan 28, 2011]

1 the legislative history brief -- I'm sorry, there

1 omitted to ask for the exhibit number. It was an

1 January 18th, 2011?

1 It then holds that information in a secure manner

1 Information and Protection of Privacy Act?

1 requests. We have a large number of research

1 understand that being the identify registry and

1 government systems. I did some contracts for BC

1 practising polygamy. I identified the family

1 activity, do you mean presumably on the basis that

1 the percentage of the mothers resident outside of

1 stores all of the parties to an event separately.

1 Q Or Mormonism more generally?

1 it as a verification. I was not familiar with the

1 A No, I was purely looking at the data and the

1 women who reported an Aboriginal background

1 midway on the left on these headings and it seems

1 the basic information that went in -- to form the

1 a literal interpretation of the Bible for

1 your Brandeis brief.

1 more than simply religion. I think a lot of

1 populations living on reserve, did you?

1 and mortality statistics by incorporated

1 rate -- sorry, the total rate for the period of

1 you see quite a lot of diversity in teen pregnancy

1 document is the quarterly digest for the last

1 A Yeah. You see --

1 look at it I note that some of the rates for some

1 more information. In particular I would have

1 that needs to be made.

1 instance, though, there is some editorializing if

1 THE COURT: Would you be content if we mark the

1 Volume 1 of 2: 1 page index; Tab 1 empty, A - C, 2

1 We have an incredible record to base final

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