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.

Zero Tolerance for Barbaric Cultural Practices Act

[The Acting Speaker, Bruce Stanton]

Order. Resuming debate. The hon. member for Calgary—Nose Hill.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, I am pleased to have the opportunity today to speak on Bill S-7. This bill contains measures to better protect women and girls in our country.

With this bill, our government is fulfilling a commitment made in the Speech from the Throne in October 2013. That commitment is to ensure that early and forced marriage and other harmful cultural practices, such as polygamist marriages and so-called honour-based violence, do not take place on Canadian soil. We see these activities as absolutely incompatible with Canadian values.

Today I would like to speak to the bill's proposed amendment to the provocation defence. I would like to address a number of misconceptions that have been expressed during debate on this bill.

A person who is found to have committed murder can raise the defence of provocation. They can raise, as a defence, that they killed the victim in the “heat of passion” brought on by “a wrongful act or insult” from the victim. The provocation, they can claim, would be sufficient to cause an ordinary person to lose self-control.

Much has been made of the fact that the defence has failed where it has been raised in the context of honour killings. While this may be the case to date, there is nothing preventing a court from accepting it in the future, and we would like to make sure that does not happen.

The defence has already been raised in at least three honour-killing prosecutions in Canada. The alleged provoking conduct in these cases was real or perceived marital infidelity and other conduct by the victim that the offender perceived as disrespectful or defiant toward them or their families. The particular three claims I mentioned failed owing to the inadequacy of supporting evidence in these cases.

The proposed amendment in Bill S-7 would modernize the defence. Under the bill, the defence of provocation would only be available to an accused found guilty of murder where the conduct of the victim that provoked the accused to kill amounted to a criminal offence with a maximum sentence of at least five years. In other words, it would be a serious offence. The reform would limit the defence so that it would no longer excuse murder where the provoking conduct of the victim was lawful.

In the Senate debates on this bill, some suggested that the defence of provocation is a long-standing and sound principle of criminal law that is operating in conformity with Canadian values and should not be changed. It was also suggested that the proposed reform would limit the defence to match.

Therefore, the question for us as legislators is whether modern Canadian values do in fact support showing compassion and leniency to those who kill in response to something they find insulting or offensive. I do not believe they do.

It is a different matter if the provoking behaviour is objectively serious and unacceptable, such as criminal conduct. The defence would still be permitted when the provocation was a physical assault or threat or some other serious form of criminality.

I think it is very important to understand the history of the provocation defence. We should also look at countries that share our common law tradition and at their experiences with this defence.

Historically, the defence of provocation emerged in the common law around the 16th century. Initially it was limited to certain categories of conduct, all related to men defending their honour, such as a spontaneous fight or an arranged duel. This also included what a man might do on finding another man committing adultery with his wife.

In the early common law, let us remember that a man's wife was his legal property. The initial provocation defence reflected this social and legal reality of the day, namely that adultery was “the highest invasion of property”, as per the Mawgridge case in 1707.

Therefore, a man who killed in response to adultery was considered less blameworthy. It may surprise some members to learn that in the history of our own common-law tradition the provocation defence was the original honour defence.

However, at some point in its history, the honour-related basis for provocation was replaced with the idea that the law should make some allowance for “human frailty”, where a person is provoked beyond the ability to exercise self-control. The specific categories of provoking conduct were eliminated and the provocation defence was made available more generally and broadly. The defence would succeed where a person killed after having lost self-control as a result of any kind of wrongful act or insult by the victim, so long as an ordinary person could also have been provoked to lose his or her self-control in the same circumstances even though not necessarily to the point of killing. This is the form of the provocation defence that was incorporated into Canadian law in the 1800s, and it remains unchanged today.

However, the use of this defence in the cases of so-called honour killings flies in the face of freedom of expression, a cornerstone of a free and democratic society. In order to protect freedom of expression, there is no room to make allowances for intentional killings on the basis of insult or offence. Allowing the provocation defence to be invoked in response to mere insults or offensive conduct is inconsistent with core Canadian values of freedom of expression, liberty and gender equality.

Both internationally and domestically, the provocation defence has been the subject of similar criticisms from a range of quarters in recent years. The Supreme Court of Canada has referred to these criticisms in some of its rulings, stating that only Parliament can address these concerns.

Many point out that the historic origins of the defence still operate to excuse male proprietary or possessory claims over women. This is clearly at odds with our modern values of gender equality and personal autonomy and freedom.

In the past decade, the legislatures of most jurisdictions with a common-law history similar to ours have acted to address some of these concerns. New Zealand and several Australian states have entirely abolished the defence. Most other Australian states have restricted the defence in some measure, as has the United Kingdom. Just last year, the Australian state of New South Wales reformed its provocation defence, including by limiting its scope to provoking conduct that would be a relatively serious criminal offence. This is the same approach proposed in Bill S-7.

Another question that was asked in the Senate was whether the proposed amendment would have the unintended consequence of taking a viable defence away from battered women who kill their abusers, but this is another misperception. In Canada, the provocation defence is rarely raised in these circumstances, but could still be raised if the woman was treated with criminal activity such as assaults or threats.

There are two primary objectives in this bill: the first to prevent the defence from being raised in the future before it is ever accepted by a court or a jury; and the second to modernize the defence more generally, so that it can no longer be used to excuse spousal homicides based on lawful conduct.

The time has come for Canada to bring our law of provocation out of the 17th century and align it with our modern values. Our women and girls deserve nothing less. I hope that all members will support this proposal and all of Bill S-7.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I would like to thank my colleague for her speech.

She ended her speech by talking about limiting the provocation defence in order to prohibit crimes of honour. This notorious provocation defence is problematic.

I would like my colleague to explain why this bill would simply limit this defence and not abolish it outright in all such cases that could arise.

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, we have chosen not to do that. We believe, in the case of the provocation defence, that where an individual, a Canadian, is threatened, has been criminally assaulted and takes measures to protect himself or herself, this is a reasonable course of action in those cases.

The member will remember that the government passed an act to give lawful protection to people who are threatened, for example, by a home invasion where they may be beaten or tied up and somehow find a way to overpower their attackers, perhaps causing the death of the attacker. Any reasonable society feels that kind of provocation, when it is met with force, sometimes has to be found lawful.

However, in the case of simply an insult or something that another person finds offensive, that is not a legitimate use of the defence, and that is why we are moving to change that.

[Lois Brown, Conservative, Parliamentary Secretary to the Minister of International Development]

Mr. Speaker, first I would like to say that I do not believe there is any such thing as an honour killing. I think all killings are criminal, and we need to look at them through that lens.

When I had the opportunity to speak to the bill when it was last before the House, I was able to tell the House a little bit about my visit to England last summer where I participated in the Girl Summit that was hosted by Prime Minister David Cameron. There were women from all around the world. There were men from all around the world who were there to discuss the very issues that we are discussing today.

Great Britain has realized that it has its own challenge with early and forced marriage, and it is particularly dealing with that issue.

While I was there I listened to Malala's father, who spoke very eloquently about the issues relating to girls. I wrote down his quote, and I wonder if my colleague might have some thoughts that she could share with the House. He said, “We should work on tomorrow's fathers. Why should I be a different father to my daughter than I am to my son?”

Does my colleague have any thoughts on how we can work with a new generation of young men particularly here in Canada and impress on them the value of girls?

[Diane Ablonczy, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, I thank my colleague for the tremendous work she is doing, a lot of it under the radar, to really support measures that foster and that affirm the equality of all, regardless of gender. This is such an important message.

Sadly, in many places of the world, there is still the idea that women and girls have no value, that they are simply chattels to be used and abused as males in the society feel appropriate.

As Canadians we are so fortunate to live in a society where that kind of discrimination is completely rejected. That is why we brought forward the bill, so that as circumstances come to our attention, as society grapples with some of these things such as honour killings and forced marriages, we have the tools to stop it in its tracks and protect Canadian society as a place where women are treated with dignity, respect and the equality that we believe in so passionately.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I am grateful for the opportunity to bring some clarity to such a sensitive debate, while the government and the majority are actively causing confusion.

I want to begin by reaffirming my unwavering opposition to polygamy, forced marriage and underage marriage. As it happens, I have met with women who are victims of these practices. I do not have harsh enough words to condemn such violence and how it undermines women's dignity. These are practices I have fought against my entire life.

As a member of Parliament, I would be pleased to support any bill that would provide more protection for the victims or help prevent these crimes. However, Bill S-7 just confirms the government's ongoing trend. In March 2012, the Conservatives introduced new legislative measures regarding spousal relationships whereby the sponsored person must live with their sponsor for a period of two years. These measures include a penalty of deportation or a criminal charge if this condition is not met by the sponsored person. I want to remind hon. members that this provision was harshly criticized, and rightly so. Sponsored women who are victims of spousal abuse have no choice but to suffer the violence under threat of deportation. We see how compassionate the Conservatives can be. In April 2014, the hon. member for Mississauga South moved Motion No. 505 to supposedly deal with forced marriages through proxy marriages. I strongly opposed that motion at the time. I am opposing Bill S-7 for the same reasons.

With these various measures, the government is causing confusion and perpetuating xenophobic stereotypes. The increasing number of laws that associate cultural practices with violence against women shows that the government is willing to exploit this tendency in a thinly veiled attempt to win votes. The bill title alone, the zero tolerance for barbaric cultural practices act, shamefully equates violence against women with certain cultural communities. This is a disgraceful way of doing things. It is ethnocentric and promotes the mistaken idea that violence against women occurs only within cultural minorities. The government is targeting racial minorities by perpetuating offensive stereotypes rather than introducing constructive measures to prevent violence against women.

This bill, like the other legislative measures I mentioned, is not only shameful, it will be ineffective. It will not solve the problems it claims to address since the Criminal Code, specifically sections 273.3 and 292, already provides recourse for the offences created in this bill. What is worse, as in the previous examples, this bill politicizes the issue of sexual violence, and the criminal offences it proposes will only exacerbate the problem. The fight against violence against women begins on the ground. In order to win that fight, we must work with all of the partners available, including those in cultural communities, in order to develop and implement a preventive approach. The bill title alone is a major obstacle to establishing such partnerships with people that this government considers “barbaric”.

Beyond the matter of the title, some aspects of this bill jeopardize the safety of women and undermine efforts to combat violence against them. Bill S-7 would amend the Immigration and Refugee Protection Act to supposedly help combat polygamy. The fact that, under the bill, the mere suspicion of polygamy can result in inadmissibility to Canada or removal orders will have serious repercussions for women.

The testimony of Avvy Yao-Yao Go, the clinic director of the Metro Toronto Chinese and Southeast Asian Legal Clinic, during the Senate committee's study was particularly enlightening:

The bill seeks to deport people who are engaged in polygamy, and that would include the very women that the government claims it's trying to protect.

With respect to forced marriages, the measure providing for a prison sentence for anyone involved could prevent potential witnesses from speaking out.

I strongly believe that the criminalization provisions will be counterproductive. The government should opt to take the constructive method proposed by my colleague from Pierrefonds—Dollard in Motion No. 503 on forced marriage. This motion called on the government to increase funding to organizations working with potential or actual victims.

The organizations working on the ground, which do unbelievable work, have too few material resources. This causes some serious problems, especially when it comes to getting victims to speak out against the practices that victimize them. The government cannot simply punish people. It needs to give organizations in this field the means to protect victims and prevent these crimes.

We would also like to see a consultation process involving women, communities, organizations and experts to form a true picture of the issue and identify the best ways to address it.

I am astounded that the government is refusing to work with the people involved on the ground and to take the necessary measures to accurately quantify this phenomenon.

Other countries have already studied this issue and implemented measures, and we think we should follow their example. The United Kingdom has adopted a method that allows victims to choose between a civil process and a criminal process in the event of prosecution. Giving victims that power can give them the confidence they need to get help and report an individual without necessarily sending family members to jail. What happened in Denmark is also interesting, but for exactly the opposite reason. In 2008, Denmark introduced criminal offences similar to those set out in Bill S-7. In the seven years since, not one criminal has been brought to justice. This shows that Bill S-7's criminalization approach hurts victims by preventing them from reporting crimes.

Our primary objective should be to fight violence against women and help victims, not hurt them, which is what Bill S-7 could end up doing. We need to put an immediate stop to this stigmatizing rhetoric and adopt the proactive approach outlined in my colleague's Motion No. 503.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, a number of thoughts come to mind in regard to the government's approach to this legislation.

One of the issues is that member after member from the Conservative Party will talk about how appalled they are at violence against women, domestic abuse and so forth. However, I could talk at great length about other areas where we could be investing much more of our time here in the House. For example, members of opposition parties have been calling for a public inquiry into murdered and missing aboriginal women and girls for a long time now. They are now joined by mayors, premiers, and many different stakeholders from coast to coast to coast on the issue.

When we look at the bill, the government has obviously made it a very high priority, yet it seems to take very small steps in two or three areas.

The part that seems to be most controversial is the name itself. I wonder if the member could provide her thoughts on this question. If the government were to accept an amendment to change the name of the legislation, would the NDP be more open to supporting the legislation?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, first of all, I thank my colleague for his question and for reminding everyone that the NDP has been calling on this government to launch an inquiry into the missing and murdered aboriginal women. Indeed, we need to bring in legislation or even a motion to really help women who are victims of violence of any kind. We are not here to criminalize them or further victimize them. Clearly, Bill S-7 has no place here. I urge all members of the House to oppose it.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, they say that an ounce of prevention is worth a pound of cure.

The government claims to be a good administrator. However, if we look at just the administrative side of this bill, it seems to me that prevention measures would be better than punitive measures.

What are my colleague's thoughts on that, from a purely administrative point of view?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I thank my colleague for her very good question.

Of course, from a purely administrative point of view, we are well aware of all the positive effects of prevention. Likewise, when we create prevention programs, we must inform and educate the people concerned.

In a society that claims to be evolved and civilized, it is high time we began with prevention, which should be at the heart of all our policy decisions.

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, with regard to my colleague's speech, I would like to reiterate the importance of avoiding extreme positions.

In any political position, it is important to reflect Canada and be nuanced and balanced. We must not be on either end of the spectrum.

Just by introducing this bill, the government is trying to influence people or scare them, not through the content of the bill, but by exploiting certain prejudices. I invite all the members of the House to be careful and avoid extremes.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Mr. Speaker, I thank my colleague for her remarks.

In closing, I would like to quote Claude Lévi-Strauss:

The barbarian is, first and foremost, the man who believes in barbarism.

Believing in barbarism is to divide humanity into the “civilized” and the “savages”.

[Jay Aspin, Conservative, Nipissing—Timiskaming, ON]

Mr. Speaker, I am pleased to have the opportunity today to speak to Bill S-7, the zero tolerance for barbaric cultural practices act. The bill strengthens Canada's commitment to preventing and responding to early and forced marriage, and other barbaric cultural practices both at home and abroad.

As a member of the Standing Committee on Citizenship and Immigration, I am pleased to see that our government is taking action in protecting young women and girls. Last year, the committee undertook a study, “Strengthening the Protection of Women In Our Immigration System”, and I am pleased to see that some of the recommendations and comments from witnesses were taken into account when creating the bill.

I am proud to say that Canada has made ending child, early, and forced marriages a priority. In October 2013, Canada announced $5 million in new money to address the causes and consequences of early and forced marriages around the world. These funds were used for programs in Afghanistan, Ethiopia, Ghana, Somalia, and Zimbabwe. More recently, in July 2014, the Minister of Foreign Affairs announced that Canada is contributing $20 million over two years to UNICEF toward ending child, early, and forced marriage. The UNICEF project aims to accelerate the movement to end child marriage in Bangladesh, Burkina Faso, Ethiopia, Ghana, Yemen, and Zambia by supporting efforts in these countries to strengthen both programming and political support to end the practice.

Canada also played an important role in bringing world attention and action to this issue of child, early, and forced marriage, through actions such as spearheading the initiative to establish the International Day of the Girl Child, and co-leading with Zambia a United Nations General Assembly resolution on child, early, and forced marriage.

These barbaric practices predominantly affect women and girls and impair their rights and ability to fully participate in society. Equality of men and women under the law is a fundamental Canadian value that shapes Canadian policy and actions both in the international and domestic areas. Free and healthy societies require the full participation of women. Sadly, in many countries around the world, millions of women and girls continue to be prevented from full participation because of violence, including through inhumane practices of early and forced marriage.

It is both the reality and the strength of our country that Canadians of very different origins live and work side by side together. New Canadians work hard to learn our languages, our values, and our traditions, and in turn are welcome as equal members of the Canadian family. The languages, cultures, and traditions of new Canadians add to the diversity of Canada, which enriches our lives. At the same time, harmful cultural practices that go against Canadian values and are in violation of Canada's international human rights commitments will not be tolerated in Canada.

Our government is aware of the cases of Canadian children being taken abroad for early forced marriage. Canada is committed to protecting and defending those who are vulnerable to these practices, both domestically and internationally.

This summer, the Minister of Citizenship and Immigration participated in several consultations on these issues across the country. Participants told the minister that early and forced marriages are still a harsh reality in Canada.

Our Conservative government has demonstrated its leadership in this area by introducing the bill and also continuing to work with our international partners and community members to find ways to end such harmful practices, which tragically are happening each and every day around the world.

Bill S-7 will strengthen Canadian marriage laws by establishing a new national minimum age for marriage of 16 years. Currently, only in Quebec is the minimum age of marriage set at 16 years. This is because specific federal laws apply only in Quebec. In other parts of Canada, the common law applies. The bill will now set 16 years as the minimum age for marriage across Canada. Some may query why the bill has not raised the minimum age to marry to the age of 18.

The approach in the bill seeks to balance the protections for children against flexibility to reflect the choices of mature minors between the ages of 16 and 18 who make a commitment to one another, such as those who have a child together. It also aligns with the approaches taken in other like-minded countries.

Bill S-7 also contains measures that would amend the Criminal Code to criminalize certain conduct related to underage and forced marriage ceremonies by knowingly officiating or knowingly and actively participating at an underage or forced marriage. For example, these offences may apply to individuals who engage in conduct specifically intended to facilitate the marriage ceremony, such as acting as a legal witness, knowing that one of the parties is under the age of 16 or marrying against their will. These proposed new offences will be punishable by a maximum of five years imprisonment.

Proposed amendments will also criminalize removing a minor from Canada for a forced or underage marriage. This is done by adding the new offences in relation to underage and forced marriage in the existing offence of removing a child from Canada to commit female genital mutilation or sexual offences. This offence is punishable by a maximum of five years imprisonment. Bill S-7 maintains this penalty. Countries such as Australia and Norway have similar criminal measures which Canada has looked to in the development of this bill.

Other proposed amendments in this bill are prevention measures that will provide courts with the authority to issue peace bonds and conditions on an individual when there are reasonable grounds to believe that a forced marriage or an underage marriage will otherwise occur. As part of the conditions that would be available, a court could order a defendant to avoid making any plans or arrangements for a marriage, whether inside or outside Canada, to surrender travel documents or to participate in a family violence counselling program.

The creation of specific forced or underage marriage peace bonds to prevent someone from being taken abroad for the purposes of early or forced marriage is similar to forced marriage civil protection orders in the United Kingdom. In addition, Bill S-7 would amend the Criminal Code to ensure that the defence of provocation would not apply in so-called honour killings and many spousal homicides. Currently, any conduct by the victim, including insults and other forms of offensive behaviour that are lawful, can potentially qualify as provocation if it is found to be sufficient to cause an ordinary person to lose self-control, the accused was not expecting it and the killing was sudden.

The proposed amendment will limit the defence of provocation so that lawful conduct by the victim that might be perceived by the accused as an insult, or offend that person or their sense of family honour or reputation, cannot excuse murder. Only conduct by the victim that amounts to a relatively serious criminal offence, such as an offence under the Criminal Code punishable by at least five years in prison, could be argued to be provocation for the purposes of the defence.

The provocation defence has either been abolished or restricted in almost every common law jurisdiction like Canada, such as most Australian states, New Zealand and the United Kingdom.

Finally, to better prevent polygamy from occurring on Canadian soil, Bill S-7 would create a new ground of inadmissibility in the Immigration and Refugee Protection Act for practising polygamy. A criminal conviction or finding of misrepresentation is currently required before polygamists can be found inadmissible.

The bill would make amendments to the IRPA so polygamist permanent residents or foreign nationals who are or will be physically present in Canada with any of their spouses would be considered to be practising polygamy in Canada. The permanent resident or foreign national could be found inadmissible on that basis alone, without requiring evidence that the person misrepresented their situation or has a criminal conviction.

I have discussed some of the very important aspects of this bill, which sends a strong message that Canada condemns barbaric cultural practices not only domestically but internationally as well.

Canada has and will continue to be seen as an independent leader on these important international rights. While the opposition refuses to even call these practices “barbaric”, it is clear that our government is taking action to prevent these barbaric practices from occurring on Canadian soil.

I hope all hon. members of the House will support this important legislation that will protect victims, predominately women and girls, from such intolerable and inhumane practices.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I listened to my colleague's speech and we must admit that his main point is rather absurd.

The short title of this bill, which seeks to eliminate barbaric cultural practices, is obviously offensive. It is tinged with racism. Furthermore, we might ask why the Conservatives are trying to use this type of title and this type of bill. It is probably for election purposes. While we are at it, we could debate other barbaric practices. Perhaps we could discuss torture or the use of information obtained by torture.

I would like to know what my colleague thinks of torture, for example. Is that a barbaric practice?