Bill S-7 (Historical)

Zero Tolerance for Barbaric Cultural Practices Act

An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts

Part 1 amends the Immigration and Refugee Protection Act to specify that a permanent resident or foreign national is inadmissible on grounds of practising polygamy in Canada.
Part 2 amends the Civil Marriage Act to provide for the legal requirements for a free and enlightened consent to marriage and for any previous marriage to be dissolved or declared null before a new marriage is contracted. Those requirements are currently provided for in the Federal Law—Civil Law Harmonization Act, No. 1 only in respect of Quebec and under the common law in the other provinces. It also amends the Civil Marriage Act to provide for the requirement of a minimum age of 16 years for marriage. This requirement is currently provided for in the Federal Law—Civil Law Harmonization Act, No. 1 only in respect of Quebec.
Part 3 amends the Criminal Code to
(a) clarify that it is an offence for an officiant to knowingly solemnize a marriage in contravention of federal law;
(b) provide that it is an offence to celebrate, aid or participate in a marriage rite or ceremony knowing that one of the persons being married is doing so against their will or is under the age of 16 years;
(c) provide that it is an offence to remove a child from Canada with the intention that an act be committed outside Canada that, if it were committed in Canada, would constitute the offence of celebrating, aiding or participating in a marriage rite or ceremony knowing that the child is doing so against their will or is under the age of 16 years;
(d) provide that a judge may order a person to enter into a recognizance with conditions to keep the peace and be of good behaviour for the purpose of preventing the person from committing an offence relating to the marriage of a person against their will or the marriage of a person under the age of 16 years or relating to the removal of a child from Canada with the intention of committing an act that, if it were committed in Canada, would be such an offence; and
(e) provide that the defence of provocation is restricted to circumstances in which the victim engaged in conduct that would constitute an indictable offence under the Criminal Code that is punishable by five years or more in prison.
Finally, the enactment also makes consequential amendments to other Acts.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Thank you.

Can you give us one specific provision of Bill S-7 that might have helped you?

[Devinder Shory, Conservative, Calgary Northeast, AB]

I guess I agree with you on the knowledge of this bill. I know that even last week with a police officer, in my capacity as a member of Parliament, I started discussing this particular issue of forced marriages and underage marriages. Then I mentioned that we are studying Bill S-7 and he was not aware. You're absolutely right on that.

What should we do to make sure that the public, and specifically those with potential to be abused, are aware of this bill and what they can do?

[Madeline Lamboley, Ph.D. candidate in criminology, As an Individual]

Mr. Chair, ladies and gentlemen members of Parliament, good morning.

My name is Madeline Lamboley and I am a Ph.D. candidate in criminology at the University of Montreal. I recently submitted my doctoral thesis on the forced marriage of immigrant women in Quebec.

Today, I am here to share my point of view on the criminalization of forced marriage. I thank you for this initiative.

My doctoral thesis is based on a qualitative approach built around “life story” interviews with 11 women between 18 and 50 who were living in, had been in or had been threatened with a forced marriage in Quebec. I completed that with 17 “experience narrative” interviews with key information providers from the police, the justice system, and the social and community environments.

During the preparation of my thesis, I wondered if the specific criminalization of forced marriage would be a solution.

Analysis of my data shows that despite the great vulnerability of the victims of forced marriages who live in Canada, for the moment, the express criminalization of this type of conjugal union does not appear to be a solution.

Why? There are four reasons.

We have to understand before we act. Several key information providers agree that before criminalizing forced marriage, it is essential to understand all aspects of it and to agree on a common definition, first of all, so that we all have the same reading of the issue. However, we have not yet reached that point.

Moreover, there are virtually no quantitative data on the topic; we are not aware of its true scope. Forced marriages exist in Quebec and in Canada, but in what numbers? We need an answer to that question before undertaking any kind of action to legislate or take other measures. There are other avenues that make it possible to criminalize nefarious behaviours that arise in forced marriages, however.

Even if this gave the authorities greater power to act, Canada does not seem ready to take such a measure. In fact, is it even necessary? Does the state not already have all of the necessary legal resources to intervene? Canada is not without means to face this issue already, to the extent that it is possible to intervene legally under the criminal system to sanction reprehensible actions that arise in a large number of situations in forced marriages (threats, aggression, sexual assault, kidnapping, confinement, false marriages, extortion, intimidation, battery, murder, attempted murder, and so on); these however are not specific only to forced marriages.

There remains a host of more insidious situations that have already been well-documented, and that can be the hallmark of forced marriages: exploitation, domestic servitude, and even in some extreme cases, slavery. These situations are much more difficult to bring to justice, or even to social awareness. We have to strengthen the legal measures that are already in place.

I asked myself whether, in the context of immigration and in the absence of a specific international instrument to protect victims of forced marriage, it would be relevant to consider the application of the Protocol to prevent, suppress and punish trafficking in persons. The protocol was ratified by many countries, including Canada. Its purpose is to implement measures to ensure the physical safety of persons and examine the possibility of legislative means to allow the victims to stay in the country temporarily or on a permanent basis. Since we have no specific sanctions, the protocol would be one possible solution to explore.

If the express criminalization of forced marriage is not advisable and cannot be considered, could forced marriage be added to the conjugal context to form an aggravating factor when violence rears its head; this could be considered in tandem with exploitation.

We have doubts as to the deterrent effect of a criminal law. Several authors, including Ms. Rude-Antoine and Mr. Neyrand, whose opinion I share, have wondered about the feasibility of prohibiting forced marriage. The legal texts are numerous. We are not convinced that this legislative action will be effective and will correspond to the social reality of these forced marriages it wishes to combat.

The difficulty with this penalization objective is twofold. On the one hand, we have to be able to identify the passage from a suggestion, the proposal of an arranged marriage, to the imposition that is the execution of a forced marriage; moreover, that penalization should not stigmatize the parents, the families and their culture of origin, as that may encourage even more young women to grant their consent in spite of themselves.

Who will be affected by criminalization? The parents, the husband, the in-laws, the extended family and the community.

Since some European countries criminalized the practice, how many cases have been prosecuted or have resulted in a sentence? That is the challenge of applying legislation that prohibits a harmful practice.

The legislation is not useless, but eradicating forced marriage requires more than just legal tools. Moreover, it might place an additional burden on the victim. A number of individuals interviewed—both key informants I met, and women—doubt the deterrent effect of a specific criminal provision for forced marriages. Canadian society would express its disagreement with such a practice through the legislation, but could it then protect the women who are its victims? Many people agree that the legislation would further stigmatize the victims who are already vulnerable enough.

Bill S-7 shows that the government is paying attention, and I commend it on that. However, the legislation lacks nuance and could have the opposite effect from that intended by isolating victims of forced marriage a bit more, even exacerbating the violence they are experiencing. In my opinion, the bill is not based on a proper understanding of the complex issues involved in violence against women and children in the context of honour.

If the criminalization approach is not possible at that point in our knowledge, what potential solutions could be implemented or simply used by Canada and Quebec to help victims?

The bill provides that the legal age of marriage be raised to 16, but why not instead bring it up to 18, the age of majority? Moreover, the marriage must be a civil one. In France, for instance, the marriage must be celebrated in a civil ceremony by the appropriate authority before being celebrated in a religious ceremony. That could be an approach to consider. There is a problem related to officiants. A father or mother can become officiants just by signing a form. That causes a lot problems.

Authorities have to educate, train the communities and raise public awareness. They definitely have to provide support services and implement a national action plan encouraging a concerted effort among community institutions and organizations. There needs to be a protocol for fighting against forced marriage. The authorities could also implement a repository for gathering disturbing information as France did; have a policy—

[Kamal Dhillon, Author, Black and Blue Sari, As an Individual]

Thank you for inviting me again.

I believe that Bill S-7 on zero tolerance for barbaric practices is a good start.

I'm humbled and honoured to be here. As you know, my name is Kamal Dhillon, and I speak as a person whose already witnessed violence. I've become an advocate for those who, like me, have been the target of domestic violence.

The last time I was here I shared a part of my story with the committee. As a result of that, I have authored a book called Black and Blue Sari, which chronicles my entire story of twelve and a half years of marriage to this man who routinely and viciously abused me, tortured me, and threatened me.

In my book, I describe the harrowing details that unfolded from the day I was married to this supposedly respectful, warm, and charming man and went on until the day my marriage ended. Without getting into too much detail, I'll share a little bit of it.

I was violently raped on the night of our honeymoon. From that night onward, I was subjected to emotional, physical, sexual, and financial abuse that occurred at least several times a week. He even attempted to murder me several times. As a result of his beatings and his rage, I live in constant pain. I have an artificial jaw as a result of that. I've had 10 multiple jaw surgeries and have more to come.

I am literally scarred for life, and despite my husband's violent death some years ago, I'm still haunted by flashbacks to those horrific beatings. I'm a single mom of four grown children and a proud grandmother of two.

One of reasons I share my story publicly is to help stop this epidemic, which is so well hidden behind closed doors. They say that the journey of a thousand miles begins with one step. lt's interesting to note that this is true for one long journey, but also for one short one. I'm pretty sure that this is probably referring to goals, tasks, initiatives, and other actions. I think this is probably referring to everything that requires someone to take the first step.

I applaud the government for taking the first steps to abolish violence against women and girls, but we need to recognize that there are still many more steps to be taken in what is likely to be a never-ending journey towards respect and self-esteem. But taking steps, no matter how small, is still better than taking no steps at all.

Thank you for doing your part in this. As much as I want to, I would not criticize the government for not doing. I actually applaud you for taking some initiative. It's certainly worth the time. I join you in expressing righteous indignation about some of the barbaric cultural practices that we as a society have allowed to permeate our culture. Condoning the behaviour equates to approving the behaviour. It's one thing to abhor the practices that have been allowed to exist in some cultures, but it's another to actually do something about the injustice we see. There is no honour in honour-based violence, and honour-based killings are really murders.

I want to try my best to make a difference for those who have been subjected to domestic violence, even if it is one at a time. If we work together, we can make a difference. As you can appreciate, it is very difficult to measure the true extent of violence against women, as most incidents of domestic violence and sexual assault go unreported.

For someone like me, growing up in this country, I was not allowed to talk about my abuse. It was about family pride. For a lot of women who come to this country, language is a big barrier. They are scared that they may be deported if they speak out. They actually don't even know that there are resources for them. Most of our ethnic communities are very closely knit, and a lot of pressure is exerted on the woman to remain with her husband.

Unfortunately, many of these immigrant women may also be abused by other family members when an extended family lives together. In the South Asian culture, immigrant women are also socialized to believe they have no rights. They're threatened with losing custody of their children. In our culture, marriage is considered permanent, and we're to submit to our husbands no matter what.

Another factor in recognizing domestic violence is isolation. It prevents the woman from getting the proper help that she desperately needs. Domestic violence can also create a feeling of shame and embarrassment so that the woman drive abusive behaviours underground. Nobody wants to admit that they're being abused. Violence against women directly affects victims, children, families, friends, employers, and co-workers. There are far-reaching financial, social, health, and psychological consequences as well. There is also the cost of bringing perpetrators to justice.

Abuse is a human rights problem. As a woman and a survivor of extreme abuse and torture at the hands of my husband and his extended family, I have chosen to break the silence and the secrecy and to speak out so that you will know the reality and the severity of domestic violence. I also hope that through my story you will be disturbed enough, affected enough, and enraged enough to join me in making positive changes towards ending domestic violence.

My hope is to see more men and women come together to confront such violations. If we don't take steps to confront this, my fear is that it will actually increase. It is my sense that many abused women have lost hope and they feel there is no hope or future for them. Speaking as a victim of domestic violence, I believe that we need to take some initial steps to ensure that there are plans for women. We need to give them some hope.

I do have a question. How do we protect girls and victims over the age of 16 and what do we mean when we say zero tolerance? Are we saying probation or are we saying a jail term? What about repeat offenders?

I want to end by saying thank you for inviting me. Together we can make a positive difference. I applaud you for taking this initiative.

[J. Michael Spratt]

I'll try to use it all.

Thank you for inviting me to speak on this important piece of criminal legislation. As was mentioned, I practice criminal law in Ottawa, and I'm a partner at the firm Abergel Goldstein and Partners. I'm a past board member of the Criminal Lawyers' Association. I'm currently on the CLA's legislative committee, and I'm vice-president of the Defence Counsel Association of Ottawa.

I've represented individuals charged with murder, have been involved in the peace bond process, and have litigated cases involving the use of provocation. I'm used to appearing before the justice committee, and I'm happy to appear before you here today, although it is a bit strange, given that this is essentially a criminal law bill.

It's a bill that, I submit, is consistent with this government's legislative history, which I submit to you, is designed to obscure major legislative changes and ultimately limit debate. In that context, I think it's important to detail the impacts that this bill will have on criminal law. I want to specifically speak about provocation and peace bonds.

Provocation is currently governed by section 232 of the Criminal Code and provides for a defence of provocation and in some cases can reduce the charge of murder to manslaughter. Actually understanding what provocation means is fundamental.

When the minister testified before you, there were some comments likening provocation to premeditated murder. Legally, of course, that's completely inaccurate. Provocation requires that there be a wrongful act or insult that is sufficient to deprive an ordinary person of the power of self-control and would cause that person to act on the sudden, before there was time for any cooling of the passions.

Provocation reflects mitigating circumstances. In other words, provocation is an allowance made for human frailty. It recognizes that a killing, even an intentional killing, may be extenuated by the complete loss of self-control and is less heinous than an intentional killing by a person acting with rational intent.

Now, there are limits on provocation. The minister told you that measures in Bill S-7 would amend the Criminal Code such that legal conduct by a victim cannot legally be considered provocation. That's already the case. The Criminal Code makes it clear that one cannot be legally provoked by someone who is doing something they have a legal right to do or by doing something that the accused incited them to do.

As I said, provocation requires that there be a wrongful act or insult that would be sufficient to deprive an ordinary person of the power of self-control. Honour killings, the purported justification for the amendments to provocation in this bill, don't meet that criteria. Our courts have time and time again rejected religion and honour as a basis for provocation.

Provocation, after all, deals with the “ordinary person” test. The Supreme Court made it clear in the case of Tran that the reasonable person, the ordinary person, is informed by the contemporary norms of behaviour, including fundamental values such as the commitment to equality. The Tran case, 2010 SCC 58, actually upheld a conviction, which was entered on appeal, for a murder in which the accused claimed to be provoked by the sight of his wife having sexual relations with another man. What is crystal clear is that whether or not the defence of provocation ultimately is put before a jury depends on there being an air of reality to that defence. That's something that the courts carefully scrutinize.

Minister Alexander told you that anyone charged with murder could raise the defence of provocation in seeking to reduce to the lesser charge of manslaughter. That's misleading and simply untrue. There must be an air of reality to the argument before it can be placed in front of a jury.

The government has maintained that changes in Bill S-7 are necessary. Quite simply, they're wrong. The minister used the Shafia case as a justification for changes in provocation. Of course, as you know, the facts of that case are well known, and it's also known that provocation wasn't raised by the defence in Shafia. Shafia was convicted of four counts of first-degree murder.

So what do our courts say about honour-based provocation? Well, let's take a look at the case the minister didn't discuss with you, the 2006 case from the Ontario Court of Appeal of Humaid. The Ontario Court of Appeal upheld a conviction for first-degree murder, denouncing honour killing in language that even an immigration specialist should be able to understand.

The court said that assuming the accused's religion and cultural beliefs, in that case, were antithetical to the fundamental Canadian values, such as equality of men and women, they could never play a role in the ordinary-person provocation inquiry. The Court of Appeal went one step further and categorized these types of rationales not as provocation, but as motive.

The evidence that you heard is that there have been three unsuccessful cultural provocation defences. The minister told you that this provocation defence has been raised in several so-called honour killings across Canada. I hope he was not trying to insinuate that the application of provocation is common. That would be a reckless mischaracterization. We are talking about three cases.

This bill does more than just limit provocation to honour killings. If that was the intent of the legislation, perhaps it should have been drafted more specifically.

We just had the Supreme Court release the case of Nur, striking down some mandatory minimums. The rationale given by the minister was that they were targeted at a specific fact situation, and the court found their application was overly broad. That could be the case here, because Bill S-7 applies to much more than just honour-based provocation. It also prevents provocation from applying to a range of other cases that have historically been put before the jury. Racial slurs, hate speech, mistake of fact—all these situations will be limited in the ability to raise provocation.

One can imagine a variety of situations where it may be appropriate to leave provocation with a jury—not to tell the jury to accept it, but to leave provocation with the jury.

Imagine the father of a young girl who has committed suicide due to cyberbullying, who was sexually assaulted and harassed online. Imagine that father standing by his daughter's grave when he is confronted by the friend of the offender, who says some of the most despicable things that would never be repeated in a forum such as this, inhumane things, and spits on the daughter's grave. Under this law, if the father reacted violently, he would be unable to raise provocation, even if he acted in the heat of the moment when his passions were inflamed.

Even if we combine behaviour like that with offences such as corrupting morals, making sexually explicit content available, corrupting children, indecent acts, exposing genitalia to a person under 16, violence to the clergy, disrupting religious worship or a funeral, recording and distributing information, failure to provide the necessities of life, administering a noxious substance, threats to kill animals, inciting or promoting hatred, theft, fraud, and mischief, this bill would be an absolute bar to provocation in those cases.

Perhaps it speaks to the government's unwillingness to read the case law or inability to understand that life can be complex. This bill simply goes too far and is too broad with respect to provocation.

Now, in my brief few moments, I would like to talk about peace bonds. Peace bonds already exist. Section 810 covers arguably what is included in this bill.

Even if it is not undesirable to add a new section to the Criminal Code to target specifically what this bill targets—and that is a consideration that should be taken carefully because the bigger the Criminal Code gets, the harder it is to understand, and we are presumed to know what's in here—one has to look carefully at what it is actually going to do.

This government is suggesting that a 14-year-old girl takes it upon herself to lay a peace bond against her family. That's ridiculous. I suppose an outside agency like the CAS, the Children's Aid Society, could intervene to lay the peace bond on the child's behalf, but they can already do that. They can already apprehend the child. They can already go to the police.

Regardless of the mechanism of laying a peace bond, the matter doesn't end when a peace bond is laid. When a person goes to court to swear a peace bond, that starts the process. The person they are complaining against is served and summoned to court. The peace bond is not automatically imposed. We still have something called due process in this country.

Then, the peace bond would be set for a hearing in our underfunded courts—

[Chungsen Leung, Conservative, Willowdale, ON]

Thank you to the witness.

Mr. Kurland, I just wish to point out to you that Bill S-7, in part 1, clause 2, proposed subsection 41.1(1), actually indicates what polygamy is, and then proposed subsection 41.1(2) provides the interpretation, but we'll leave that to future consideration.

My question has to do with the proper training and the enforcement of the provisions by our front-line workers. We have immigration officers stationed abroad; we have Canada Border Services people at points of entry; and domestically we have our own immigration officers as well as municipal police, provincial police, and the RCMP. Given all of this training of enforcement officers, does this bill provide the tools for them to enforce legislation regarding any of these issues, such as forced marriages or child marriages? How does this bill do that, and if we ask in the negative, how can we do it better? I'd like to hear your comments on that.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

That is something we would like to see.

We are a bit disappointed to be debating a bill like Bill S-7 while in our opinion, and as you also mentioned, there are some very concrete measures that could help vulnerable women. Those measures were mentioned in the last report, or in the complementary report submitted by the NDP on the vulnerability of women.

Very briefly, since I have very little time left, would you agree that one of the problems that occur in forced marriages, and regarding violence against women in general, is the issue of silence? We have to find ways of encouraging women to disclose these situations, as if they do not do so, we cannot punish the guilty. The first step is to ensure that they are all given means to disclose that type of violence, such as forced marriages.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Thank you, Mr. Chair.

I want to thank the witnesses for their participation today in our study of Bill S-7.

I want to begin by saying that the controversy around this bill does not concern the existence or non-existence of barbaric practices against women. I can assure you that everyone around this table is in agreement that there are barbaric and unacceptable practices against women here in Canada, and probably in all countries. Of course, there are certain practices that are to be found more frequently in other countries. The debate regarding the title is not about whether or not barbaric practices exist.

There is not a doubt that we must fight these practices. We all agree on that. Violence against women, whatever form it takes, is completely unacceptable. We have to do everything in our power to stop it and to bring about equality between the sexes, as you said.

I think it is important to somewhat reframe the opinion of people attending this committee with regard to violence against women. We do not agree on the most effective way to fight against this type of violence against women. That is what the debate centres on in connection with this bill.

Ms. Fakri, you explained earlier some of the things that make women vulnerable. These elements mean that women may encounter certain types of violence more easily in their environment, such as forced marriage. You emphasized financial dependence several times. That seems to be an important point for you. However, there is nothing in Bill S-7 that adresses that issue.

Recently, the committee did a study on the vulnerability of women in our immigration system. That is one thing that came out of this study, but since the publication of the report, there is still nothing being done on that.

Since you work on the frontline with women, what concrete measures would you propose to improve newcomers' gender equality, which is tied to financial independence?

[Laila Fakhri, As an Individual]

Good morning, everyone. I'm very pleased to be here and to have the opportunity to participate in this discussion on Bill S-7, the zero tolerance for barbaric and cultural practices act.

Being an immigrant woman and working with victims of domestic violence, I have learned that certain antiquated cultural practices, such as forced marriages and child marriages, create barriers for women's rights because they are generally associated with increased violence and oppression.

In many ways I support this proposed legislation because I believe in equal rights for all men and women in political, economic, cultural, personal, and social activities. I do want to mention that while I see many a strength in this bill, I also believe there are many flaws in it as well. I am against barbaric and cultural practices that prevent women from achieving equal rights.

We need a policy as clear as Bill S-7 to end these old barbaric traditions in Canada and abroad, because we live in the 21st century and things, such as our social structure, have progressed.

We need to develop a strategy to end all forms of gender-based violence. Fortunately in Canada, under the Canadian Charter of Rights and Freedoms, Canadian immigrants have the right and freedom to practice any religious belief without any repercussions. However, certain immigrants will continue to carry on their own ideologies in the area of matrimony that may not necessarily be in line with Canadian values and may possibly infringe upon women's rights and freedoms. In the name of freedom, these cultural practices are carried out at the expense of the liberty, well-being, and happiness of the women and girls involved. Freedom that allows individuals to practice old traditional cultural beliefs that oppress other people is not freedom at all; it is tyranny.

It is morally incumbent to support Bill S-7, the zero tolerance for barbaric cultural practices act, to protect women who grew up in western society. This category of women may be in constant clash with their families who would rather see them partake in traditional practices. She may face huge pressures to accept her family's or community's wishes. If she is from a very traditional family, the wrong decision may be life threatening. Two extreme Canadian cases of this are the four females from the Shafia family in 2009, from Kingston, Ontario, and Ms. Nasira Fazli in 2013 in Ajax, Ontario. As well, many other women are and continue to become victims of domestic violence.

I wish to highlight the following major factors that predispose immigrant women to domestic violence.

First is conditional permanent residency. There is a period of two years during which the permanent residency of the sponsored person is conditional on the person remaining in a conjugal relationship and cohabitation with their sponsor. This is a flaw that I see in the act. If they don't fulfill these conditions, their permanent residency could be revoked and they could be deported. In most cases, the victims are uninformed about their rights and the cultural norm in Canada. Out of desperation, they will remain in the relationship due to this requirement.

Second, women are financially dependent on their abuser or their spouse. I should emphasize that the first point is deemed to be the most complicated and, perhaps, has the greatest impact on increasing the risk of domestic violence against immigrant women. While I support this bill in many ways, I want to make it clear that this is an area where I see flaws.

I propose the following recommendations to help address some of the challenges I have mentioned. First, an information booklet on fundamental rights and freedoms, in particular women's rights, should be distributed to applicants of the sponsorship program as a mandatory requirement for review, prior to approval of entry into Canada.

Second, immigrant women who lack financial independence might be dangerously dependent on their husbands for financial support. The repercussions of this type of financial dependency for women may include reduced self-confidence, increased isolation, and psychological, mental, and social health problems. Language classes after the women arrive in Canada should be compulsory.

By passing Bill S-7, the zero tolerance for barbaric cultural practices act, the government is obligated to create more programs and services. More work needs to be done. If we Canadians believe that Canada is the world leader in the promotion and protection of women, women's rights, and gender equality, what do we need to do to bring this talk to a walk?

Polygamy, forced marriages, and honour killings are heinous and barbaric practices. It's time to say no to these practices. These practices add to the issue of domestic violence.

The elimination of gender-based violence is value driven, not valueless. In order to do this, the Canadian government needs to take serious steps to increase programs and services and to educate front-line workers—police, doctors, counsellors, and settlement workers—the legal system, and overall, all citizens.

Women who live in Canada and around the world deserve to live free of violence and abuse. I request that our government protect women from facing the harsh consequences of barbaric and cultural practices on Canadian soil. If the Canadian government is open to bringing immigrants to this country, we need to educate them in culturally acceptable practices, values, beliefs, and Canadian law.

Again, I would like to express much gratitude to all of you for your courage and for being here with us. Together, we will see change.

Thank you.

[The Chair, Conservative, David Tilson]

Good morning everyone. This is the Standing Committee on Citizenship and Immigration. It's Tuesday, April 30, 2015. We're studying Bill S-7, an act to amend the Immigration and Refugee Protection Act, Civil Marriage Act, and the Criminal Code, and a number of other pieces of legislation.

Appearing before us this morning are two witnesses, Laila Fakhri and Richard Kurland, our favourite witness, who is a lawyer and policy analyst.

Ms. Fakhri, you have up to eight minutes to make a presentation. Thank you for coming.

[Dr. Rupaleem Bhuyan, Professor, Faculty of Social Work, University of Toronto, As an Individual]

Thank you.

First, I apologize if I start to cough; I am getting over a cold.

I would like to thank the committee for this opportunity to comment on Bill S-7. My name is Rupaleem Bhuyan, and I am a professor of social work at the University of Toronto. I am also a lead researcher in the Migrant Mothers Project, which was founded in 2011 to examine how changes in immigration policies impact the safety and well-being of immigrants who are facing gender-based violence. For the last 15 years, I have been involved in violence against women advocacy, as a counsellor, public educator, and now as a researcher.

Today I would like to offer comments with regard to the bill's title, how the bill seeks to criminalize forced and early marriage, and how the bill would impact immigrants who are facing domestic violence.

First, I would like to echo remarks made during the Senate hearing regarding the racist undertones of the phrase “barbaric cultural practices”. As a domestic violence and sexual assault advocate and researcher, I can attest that violence against women and children occurs in all cultures, groups, and societies, and in most cases cultural values are used to justify and carry out the abuse. I wish we could say with confidence that violence against women was un-Canadian, but if you look at the rates of rape, sexual assault, harassment, violent spousal assault, and homicide—specifically by male spouses, or former partners, against their female spouses—this is a Canadian problem. I strongly recommend that the committee remove the phrase “barbaric cultural practices”. I find that it is misleading from the serious issues that this bill seeks to address. Instead, I encourage you to refocus the attention on promoting gender equity.

With regard to how Bill S-7 seeks to criminalize people who are involved in a forced or early marriage, I join others who view forced marriage as a form of family violence that requires serious attention and a multi-level response for prevention and support of victims. Forced marriage is understood as the marriage that takes place without full and free consent of both individuals. The absence of full and free consent takes many forms and can involve a continuum of coercive, threatening, and abusive behaviours.

I caution this committee, however, against locating the cause of forced marriage merely in cultural practice. Cultural practices are no more, and no less, relevant in cases of forced marriage as they are when a high-profile broadcast journalist sexually harasses and assaults his peers, or when a member of Parliament uses his power to sexually harass staff members with impunity. In all of these cases, co-workers and other members of the community who know about the abusive behaviour and remain silent are complicit. In each of these examples, cultural norms and social practices provide the perpetrators with the tools to control, manipulate, and silence their victims.

I think it is important to reiterate what Deepa Mattoo, from South Asian Legal Clinic of Ontario, previously testified before the Senate, that Canada currently has several criminal sanctions for egregious behaviours that occur in the context of a forced marriage. Acts related to kidnapping, assault, and confinement are already Criminal Code offences that can, and are, used in cases of forced marriage.

Bill S-7 introduces a very wide net to criminalize people who are involved in a forced marriage but who may or may not have been involved in acts of violence such as kidnapping, assault, and confinement. Under Bill S-7, it is unclear how the law will define forced marriage and who would be criminalized. Also, as the previous witness has testified, the impact on youth may be unjust. I recommend removing proposed sections 293.1 and 293.2 in clause 9, which add indictable offences to anyone celebrating or taking part in a forced or early marriage.

This law also falls short of providing potential victims with the option of choosing a civil path for protection. I believe in the Senate hearing, as well, there was testimony from Ms. Siddiqui that civil protections would allow a young woman who may be living with her parents to have legal protection to prevent a forced marriage but still remain living with her parents. Criminalizing parents or family members who are involved in a forced marriage could negatively impact the young person. The path of civil protections could be similar to the route of child protective services, which investigate and ensure parents are not abusing or neglecting their child but still maintain the emphasis on the best interests of the child. I encourage this committee to consider options to work with provinces to provide a path for civil protection so that young people who are forced or threatened with being forced into a marriage may have the option to pursue this as a way of preventing the marriage.

My final comments concern how this bill will impact immigrants facing domestic violence. Though the Senate debates suggest this bill is not about immigration, the House debate has shown otherwise. I am most concerned with how this bill increases discretionary powers among immigration officers to deem inadmissible anyone who is perceived to be practising polygamy. The low burden of proof may lead to racist discrimination against immigrants from particular regions of the world who are considered undesirable. This provision would also put women who are spouses of polygamous men at risk of being deported or being separated from their children

Bill S-7's emphasis on forced marriage and polygamy cannot be separated from the numerous ways this government has been placing constraints and conditions on people who wish to immigrate to Canada as a spouse or partner. In the broader context, we have seen marriages scrutinized in fraud investigations, new conditional status on new spouses and partners, and the recent ban on proxy marriage.

In my research I found numerous examples where conditions related to immigration status are used by abusers to threaten and control a spouse or a child. I urge this committee to consider the ramifications of creating new ways for abusers to literally hold their victims hostage through immigration laws.

We are beginning to see the effects of conditional permanent residence introduced in October 2012. From data I received from Citizenship and Immigration Canada, in the first 18 months nearly one-quarter of all sponsored spouses and partners were given a conditional status. During this period CIC received only 12 requests from women seeking an exemption based on abuse and neglect. Only four of those were granted.

I find this to be a very low number, and when I work with community organizations in Ontario and in a new study we're doing in Alberta, I see this is very different from the number of people who are coming forward seeking safety who are in a conditional permanent residence. This is an example where immigration policy is forcing women to remain in abusive relationships.

I'm not currently aware of any case where conditional status was granted to someone who was in a forced marriage. I certainly believe that criminalization of forced marriage outlined in this bill may require women with conditional status to report a forced marriage to police in order to qualify for the exemption, as one of their forms of evidence. I believe this significantly raises barriers to reporting abuse. It is very likely that people in forced marriages will fear that coming forward to report the abuse in their lives will lead to losing their immigration status.

When women must choose between their right to remain in Canada and their safety from violence, we are creating a dangerous environment, one that will compromise the basic human rights of people living in Canada.

I recommend the removal of conditional permanent residence, or an easy pathway for women who are facing violence, including forced marriage, or who are in a polygamous relationship, that does not require the consent or consult of their sponsor so that they may achieve permanent residence without being further exposed to abuse in their relationships.

I also would recommend the committee consider creating a special unit in Citizen and Immigration Canada. There are many forms of abuse that sponsors can use, and I believe that this is a dedicated area that I would like this committee to consider.

Thank you very much.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Order, please.

We are resuming the meeting of the Standing Committee on Citizenship and Immigration devoted to the study of Bill S-7. I want to thank the witnesses who have accepted our invitation.

We have with us, from the Coalition of Progressive Canadian Muslim Organizations, Madam Salma Siddiqui, president. Thank you for being with us.

Also with us, as an individual, is Rupaleem Bhuyan, professor, Faculty of Social Work, University of Toronto. Thank you, Madam Bhuyan, for being with us today.

I see that our third witness has just arrived, Madam Lee Marsh, president, Advocates for Awareness of Watchtower Abuses. Thank you for being with us.

You will each have eight minutes to present your opening remarks.

Madam Siddiqui, you have the floor.

[Kathryn Marshall, Lawyer, As an Individual]

I'd like to thank the committee for inviting me here today to speak about what can be done to better protect women and girls from violence.

My name is Kathryn Marshall. I am a lawyer in Vancouver and also a columnist. I have spent many years writing and researching the issue of violence against women and girls. I have a degree in women's studies, with an honours specialization in feminist research.

At the heart of this bill is gender equality and the right of women and girls to be equal in Canada. As a woman, I feel very fortunate that I was born in a country in which the rights of women and girls are protected and in which we are equal to men. I feel fortunate that my daughter was born in a country where her gender does not sentence her to a lifetime of second-class citizenship.

At the core is the fact that equality is a fundamental human right in Canada. It is a core of who we are as people, a core value. It's something that cannot be taken for granted. We have to protect it and preserve it.

Unfortunately, there are many parts of the world that have no equality provisions, in which women have no rights at all. There are places in the world where women cannot work, cannot go to school, cannot drive a car, cannot wear what they want, cannot travel; they can hardly do anything. This is a reality in 2015. It's hard to believe, but this is the case.

Women and girls around the world are also subjected to absolutely horrendous practices, things such as female genital mutilation, polygamy, child marriage, slavery, sex slavery, trafficking, and so-called honour-related violence that often leaves women and girls dead or severely wounded and maimed.

The reality is that many of these practices are deeply rooted in culture and are deeply embedded within various cultural societies. They are in fact condoned, if not encouraged, in many parts of the world. You can commit heinous crimes and there will be no legal repercussions, because it is culturally okay to do these things. In the society we live in today, in a world where people migrate, move, and travel, women and girls are at risk no matter where they are living.

Often the perpetrators of these horrendous acts feel that they are justified in what they are doing because they believe their culture sanctions them in doing so. They often raise their cultural differences as a defence to these horrendous acts against women and girls. This is very common not only in parts of the world where these acts are legal but also in parts of the world where they are not—places such as Canada, the U.K., the U.S., parts of Europe, Australia. This is a global problem, and it's one we simply cannot ignore.

Gender equality should never be taken for granted, even in a place like Canada, where it is a core value of who we are as people. Critics of this bill have said that such horrendous acts as honour killings, polygamy, and child marriage should not be a priority of this government because they don't happen with enough frequency in this country. To those critics I would say that one occurrence of these brutal and un-Canadian acts is one enough: there should never be any of these acts. We should always take action. The reality is that we're not talking about a few isolated incidents. This is something that's becoming increasingly more common. The trend seems to be that's it's occurring with more frequency each year.

With the passage of this bill, Canada will be joining other nations that have taken a strong stance against forced and child marriage by making it illegal. It is important this law include criminal consequences for people who organize, participate in, pressure, and facilitate child marriage and marriage without consent. It is often the pressure from family and community that is forcing these young women and girls to engage in these marriages.

Canada does not currently have a minimum age for marriage. We need to protect children from abuse by making the legal age for marriage the same as the legal age for consent in this country. It needs to be codified. We can't simply rely on the common law. The common law is something that's very much open to interpretation; that's the nature of it. It should be codified. It's extremely important.

I know there has been a lot of criticism directed towards the name of this bill, which is the zero tolerance for barbaric cultural practices act. Language is extremely important. It has long played a major role in defining the debate around violence against women. Any introductory-level women's studies course will include a unit on language, because when it comes to gender and gender construction, frankly, language is extremely important. It can be used as a tool, it can be used as a device, it can be used as a sword and a shield.

Before 1983 in Canada a husband could rape his wife, and this was not considered a crime; marital rape was in fact legal. This was only 32 years ago. Then there came a movement, which was led by women's rights activists, to call this act of non-consensual sex exactly what it is, sexual assault. It was only then that spousal rape was criminalized in Canada.

Even the term “rape” has been removed from our Criminal Code and replaced with the term “sexual assault”. This was due to the acknowledgement that the word rape is a loaded gender term and has been stigmatized and treated differently from other forms of violent assault throughout our social and legal history.

There was a time when domestic violence was legally sanctioned in this country. In the 18th century, according to British common law, a husband could physically abuse his wife if she disobeyed him, as long as he—and these are exact words from British common law—used a weapon “no bigger than his thumb”. So in our social and legal history, domestic violence has been treated as a private matter. It was not until the 1970s that awareness campaigns around domestic violence pushed the issue out into the open.

But the term “domestic violence” is a problematic one, because it tends to be interpreted as violence between intimate partners. There is now a tendency to label honour violence as domestic violence. However, this term is not really appropriate, because a lot of honour violence is not between intimate partners but between family members, friends, uncles, aunts, cousins, in-laws, parents. Frankly, “domestic” violence can be interpreted as something that is only within the home and is not an issue of social and community concern. The horrifying reality is that culture is an essential part of honour violence. In parts of the world it is condoned and is legal. We must not be afraid to label barbaric practices as what they are.

I think that calling the bill what it currently is called shows a strong stance. History has shown us that language is an important tool, and we should use it. We should call these acts what they are, which is barbaric.

Thank you.

[Tahir Gora, Director General, Canadian Thinkers' Forum]

Thank you very much.

Honourable Chairperson of the Standing Committee on Citizenship and Immigration, honourable members of Parliament, good morning. My name is Tahir Gora. I am the director general of Canadian Thinkers' Forum, which is a not-for-profit organization and a think tank that deals with study reports on complexities of multiculturalism; growing Islamic radicalization in Canada; the new rise of anti-Semitism; and polygamy, forced marriages, and women abuse issues in South Asian and Middle Eastern diaspora.

Minister Chris Alexander’s proposed Bill S-7, the zero tolerance for barbaric cultural practices act, is very relevant to our studies in regard to polygamy, forced marriages, and women abuse issues in South Asian and Middle Eastern diaspora.

Bill S-7, an act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other acts, seems to address our concerns in regard to issues of polygamy, forced marriages, and women abuse in Canadian South Asian and Middle Eastern communities particularly. Unfortunately, there is no valid authentic data available regarding such issues. However, some of the incidents in the greater Toronto area reported to our group suggest endorsing the government's proposed tough legislation against polygamy, forced marriages, and women abuse issues.

Here are a few examples of such cases we heard. We have been notified of a few cases in which some people were allegedly involved in polygamy associated with fraudulent immigration, misuse of welfare money, and polygamy itself. Some cases have been reported to us in which some men are sponsoring women from Pakistan, Somalia, and Egypt as their sisters, but marry them as a second wife as soon as they arrive here. Of course, such marriages are not registered, but are facilitated by some Islamic clerics in Canada.

For instance, Imam Aly Hindy of the Toronto Salaheddin Islamic Centre still seems to believe in breaking Canadian law, and has officiated or blessed dozens of polygamous marriages for men he knew were already married to more wives. Once reported in the media, Imam Hindy said, “If the laws of the country conflict with Islamic law, if one goes against the other, then I am going to follow Islamic law, simple as that.” However, modern interpretation of Islam clearly indicates that the permission of polygamy in Islam was only valid in the context of the sixth century's tribal conflicts of medieval societies. That permission is no longer valid in rethinking the process of today's Islam, but literalists such as Imam Hindy still follow these traditions.

We also know about some situations in which some men are having multiple wives but are not declaring them as wives, as they can't. They are collecting welfare money and child benefit tax returns through such practices.

Similarly, forced marriages cases are widespread. Hundreds of cases of forced marriages are reported among Canadians every year in which parents or other close relatives take their children back home and force them to marry there. Some of the forced marriages are happening right here in Canada. Apart from those reported forced marriages cases, there are hundreds of unreported forced marriages incidents associated with Canadians. Unfortunately, such cases are mainly associated with South Asian and Middle Eastern communities. Those incidents of polygamy and forced marriages eventually result in domestic violence, and sometimes in honour killing.

Canada's Citizenship and Immigration Minister Chris Alexander tabled this bill, called the zero tolerance for barbaric cultural practices act, in Parliament last November. Critics criticized the name of the bill, calling it a pretty loaded one.

However, our group believes in calling a spade a spade. Violence against women is an absolutely barbaric act. It must be addressed strongly. Forced marriages, polygamy, and honour killings happen every day around the globe under the guise of cultural practices. Should those cultural practices not be condemned? Calling a spade a spade should not be a political issue in a country like Canada where human rights guarantee equal rights to men and women.

Polygamy is practised in Canada by some of the Muslim and Mormon community members. Cases of polygamy in the Mormon community are already under fire and scrutiny. Polygamy cases and issues in Canadian Muslim communities are widespread and mostly under the rug.

Minister Alexander's bill proposes the following: creating a new inadmissibility under IRPA that would render permanent residents and temporary residents inadmissible if they practice polygamy in Canada; strengthening Canadian marriage laws by amending the Civil Marriage Act to codify the existing legal requirements at the national level for free and enlightened consent, and establishing a new national minimum age for marriage of 16; helping to protect potential victims of early or forced marriages by creating a new specific court-ordered peace bond to be used where there are grounds to fear that a person would commit a forced or early marriage offence, including the mandatory surrendering of a passport to prevent a child from being taken out of the country to facilitate a forced marriage; criminalizing certain conduct related to early and forced marriage ceremonies in the Criminal Code, including the act of removing a child from Canada for the purpose of such marriages; limiting the defence of provocation, so that it would not apply in so-called honour killings and many spousal homicides; and including consequential amendments to the Prisons and Reformatories Act and the Youth Criminal Justice Act to include the aforementioned peace bond.

Our study findings are completely aligned with proposed Bill S-7. There is dire need of a widespread community awareness campaign by our government against those barbaric practices through Canadian South Asian and Middle Eastern media.

Our group is also working on the following measures: trying to establish a Muslim women support centre; working to establish a helpline and a centre where potential and actual victims of polygamy, forced marriages, and domestic abuse can contact; working on building a support system and training programs to handle issues of forced marriages, polygamy, gender segregation; working to launch our own surveys and incident data centre for forced marriages, polygamy, and honour killing cases; and working on awareness campaigns, including seminars and conferences, to curb incidents of forced marriages, polygamy, honour killing, and gender segregation.

Thank you very much.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

I want to welcome everyone to the 44th meeting of the Standing Committee on Citizenship and Immigration.

Today, we are continuing our study of Bill S-7.

Thank you very much to our two witnesses for joining us today.

From the Canadian Thinkers' Forum, we have Tahir Gora, director general.

Also appearing, as an individual, is Chantal Desloges, a lawyer at Desloges Law Group. Thank you very much for being here today, Ms. Desloges.

Each of you has eight minutes to make an opening statement, and we will then move on to questions from members of the committee.

Mr. Gora, go ahead.