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

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Mr. Speaker, I rise today in opposition to this bill. I was on the citizenship and immigration committee when it completed the report detailing how to better protect women in our immigration system. Frankly, I hate saying the short title of Bill S-7, which was created after that study, but I will. It is called the zero tolerance for barbaric cultural practices act. It would not do anything to actually protect women from violence, as it claims to do.

It was interesting to hear in the minister's speech that she thought it would potentially protect women when it really would not. Most of the practices that the bill hopes to curb, including polygamy and honour killings, are already illegal in this country, so Bill S-7 would not do anything new, other than focusing on criminalizing other behaviour.

When the citizenship and immigration committee was hearing testimony for its report, experts agreed that women who are experiencing violence need supports, like housing, counselling, and assistance in navigating the complex family, criminal, immigration, and legal systems. The experts also agreed that women coming into this country should be provided with information about our systems before they even come here, or at the borders when they arrive, in languages they can understand, to ensure that women are protected, educated, and made aware of the support systems available in Canada.

We were sad to hear testimony about how conditional permanent residence status had contributed to people being trapped in abusive relationships. Why? It is because the immigration status of the woman is tied to her partner. If she were to report violence in her relationship or to leave that relationship, she would fail her conditional permanent residence status and be deported from this country. That means she could be sent back to a country or situation that is not ideal or safe, or where she could be persecuted or stigmatized for leaving a conjugal relationship or marriage. There are many countries around the world where women are stigmatized, including Canada, for seeking a divorce or leaving an abusive relationship.

In its report about Bill S-7, the South Asian Legal Clinic of Ontario asserted the following:

This Bill appears to extend a trend in this government’s track record to strip permanent residence and deport more and more racialized people from Canada, regardless of how long they have been here.

SALCO'S report continued to assert this:

In the preparation of this legislative and procedural change, they have failed to consult experts in this field about what creates further barriers to accessing safety for women experiencing violence.

The fact is that the Standing Committee on Citizenship and Immigration compiled expert testimony on protecting women in our immigration system, and the report did not include all of the good recommendations that came from experts. The committee spent days and weeks studying this topic, and the recommendations in the report are still not addressed in this bill that the government has brought forward through the other chamber.

Let us talk about what Bill S-7 would actually do. It would make being in a polygamous relationship grounds for finding a permanent resident inadmissible in this country. Polygamy has been illegal in Canada since 1892, so what would it really accomplish? Nothing new. Immigration law and policy already contain provisions addressing polygamous unions, so nothing new is being introduced here.

I know the government has asserted that there are hundreds of polygamists already living in Canada today. If that is a fact, then why is the government not enforcing the existing laws? If it wants to get rid of polygamy in this country, why is it not ensuring that the laws that have existed since 1892 are actually enforced?

Moving on to the topic of honour killings, murder is murder is murder, and it is illegal in this country. This bill would preclude a defendant in a murder trial from arguing that an insult to family honour provoked his or her actions.

Canada's courts are sufficiently equipped to sentence somebody for murder, and that is what we have seen happen in this country when somebody has tried to claim an honour killing. We have seen our courts uphold our laws, sentence the perpetrators of these murders, treat them as murderers, and sentence them to jail time. Therefore, I do not understand why the government is pretending that it is creating a new law here when once again nothing is really changing.

Citing data from the South Asian Legal Clinic's study on forced marriage, the bill also criminalizes forced marriages. However, Bill S-7 ignores SALCO's recommendation, which is to protect families and provide adequate support to vulnerable women. Its experts specifically warned against criminalization, as this would be more destructive than helpful.

I am 100% against anybody being forced into a marriage. However, we have to ensure that we are protecting the women who are already in forced situations. We need to ensure they are given the support to leave in a safe way, and ensure that they are safe and secure in the community they are living in.

I want to read a couple of quotes from the Schlifer Clinic in a report that it issued. It states:

If passed, the Zero Tolerance for Barbaric Cultural Practices Act, introduced on November 5, 2014, will serve as another example of institutional barriers to marginalized communities reporting violence and having access to support. It will serve as another example of how our government is failing to listen to survivors and targeting racialized communities for exclusion and deportation from Canada.

It continues to state the following:

The Schlifer Clinic has grave concerns about the Act, which would result in the exclusion, deportation and criminalization of families (or of women themselves), which only serves to further harm women experiencing violence.

Therefore, we see from experts on the ground that this bill is not helping women and it is not protecting or supporting them; rather, it would end up doing the opposite.

I said earlier that the first time I read the short title I did not want to say it and that I did not like it. That is because it is xenophobic and reinforces prejudice against certain cultural groups by targeting racial minorities for practices that are found in Canadian society at large today.

I keep coming back to the experts because they are the ones who are doing the research on the ground. Here is a quote from Avvy Yao-Yao Go, who is the clinic director of the Metro Toronto Chinese and Southeast Asian Legal Clinic. She states:

From the very naming of this bill to the various legislative amendments it seeks to amend, Bill S-7 invokes racist stereotypes and fuels xenophobia towards certain racialized communities.

Deepa Mattoo, the staff lawyer and acting executive director of the South Asian Legal Clinic of Ontario, stated:

Giving it a shock factor name will not eliminate the issue. Instead it will force perpetrators to take this underground, ensuring the victims and potential victims are isolated from any resources. This causes a greater risk to their safety, not to mention their emotional and mental well-being.

That is another example of another expert telling us how the short title of this bill is xenophobic and that the bill as a whole would be more harmful for women in our country.

While I agree that no woman, regardless of her race, citizenship, status, or religion, should be subject to gender-based violence, including the practices of forced marriage or underage marriage, I do not support making women more vulnerable.

I would like to end my remarks by saying that this bill has not had adequate consultation.

As members will notice, I have many more sheets to go in my prepared remarks. However, I will go back to the experts. There is a media release that was sent out by 13 expert organization groups, and I do not have time to name them all. I want to read a small blurb from its introduction.

It states:

The announcements in the tabled Bill perpetuate myths about practices of polygamy and forced marriages while misguiding Canadians to believe that violence against women is a “cultural” issue and happens in only certain communities. The government has blatantly targeted marginalized and racialized communities through the racist framework used in the intent, wording and announcement of this Bill. This inflammatory language and the perpetuation of racist myths is itself an obstacle to understanding the harmful effects of these proposed legislative amendments. As organizations dedicated to advancing the rights of all women, we are painfully aware of the challenges faced by all women in Canada from all walks of life and backgrounds to find a safe and secure home. In that regard, immigrant and racialized women face additional challenges because of their race and/or their precarious immigration status. Contrary to what the government has stated, the proposed legislative changes will not result in greater protection for women victims of domestic violence, but will have the opposite effect.

[Joe Daniel, Conservative, Don Valley East, ON]

Mr. Speaker, last time this bill was debated, the members of the official opposition kept saying that the bill would marginalize victims. The truth is that actual victims of these barbaric practices support the bill.

How does the opposition stick to the rhetoric when actual victims are coming up in support of this bill?

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Mr. Speaker, growing up in Canada, I was a victim of domestic violence. I am a survivor of domestic violence, and this barbaric practice happened in Canada by Canadians, not by any foreigner. Therefore, on this barbaric practice, there are many people who are survivors of violence perpetuated against women, everywhere, and not just domestic violence, but violence towards women all across this country. It is a root problem.

It is a systemic problem for women, who continue to face racism, sexism, and all types of discrimination and violence, and that needs to stop. It is the systemic barriers that the current government continues to support that are the problem, and those are the problems that need to go away.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, every society has some form of gender violence. It is very real and tangible.

However, when we take a look at Bill S-7, I listened to the member's comments regarding the number of stakeholders who have taken offence to it.

The Liberal Party has been fairly clear regarding the use of the word “culture”. One would think that the Prime Minister's Office has a special group of individuals who sit around a table creating these names, and they throw in these adjectives. Here we have “zero tolerance for barbaric cultural practices”. There is no doubt that it is exceptionally offensive to many people that the word “cultural” would be incorporated into the legislation in terms of the short title.

It seems to me in listening to the member that this is more offensive than anything else. However, it seems that there might be some value in certain parts of the legislation.

My question to the member is, if the government were to amend the word “cultural” out of the legislation, would she see any value whatsoever in supporting it?

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Mr. Speaker, I would support the entire short title being deleted completely. I think that is the best way to fix the title.

Even within the Conservative team, this is what Senator Andreychuk said in a media article about the title:

“...if you wanted barbaric cultural practices, which probably wasn’t going to be my choice, but if you wanted that, I wished you had added something like violence in there...”

I laud Senator Andreychuk for realizing that the root problem here is violence against women and it is prevalent in all societies.

I have worked with Senator Andreychuk on many issues with respect to sexual and reproductive health rights, and I thank her for the work she is doing. The rest of the Conservative team should listen. It is fine if they do not want to listen to experts, but let them at least listen to members in their own caucus and team.

[Annick Papillon, NDP, Québec, QC]

Mr. Speaker, as I was listening to my hon. colleague talk about this important issue, I was wondering if she agrees with me that what we really need are human and financial resources.

One thing is for sure: we need to make sure that we can do things properly when it comes to this issue. I know that her riding must be like mine. We can have an impact on society by investing in resources for organizations, police forces and various front-line actors. That is how we can enable them to tackle the problems we do not really know how to address. The first step is talking to the community and making investments where they are needed. I would like to hear her thoughts on that.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Mr. Speaker, my hon. colleague from Québec is exactly right. Instead of a sensationalized bill that does not actually get to the root of the problem, the minister should commit to widespread and meaningful consultations with community groups and experts so that the real issue of gender-based violence is addressed in a meaningful and effective manner.

The government should actually increase its investment in organizations that provide services such as safe and affordable housing, counselling, and support in navigating our very complex systems and services. Immigrating to a new country can be very traumatizing for a young women if this is the first time she has ever left her home country. Ensuring that she has every support she needs in a manner she can comprehend and digest is very important.

I really wish, from the bottom of my heart, that the government would actually take some interest in investing in resources and the agencies that are providing these much-needed services, mostly with volunteers and with very weak budgets.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, I am pleased to rise today to speak to Bill S-7, the zero tolerance for barbaric cultural practices act. I would like to take this opportunity to address the comments that have been made in this and other places suggesting that the reform to the defence of provocation is unnecessary in light of three cases of so-called honour killing in which it was unsuccessfully raised.

The defence of provocation, sometimes known as the heat of passion defence, applies only to the charge of murder and comes into play only if murder is actually proven. It does not give rise to complete acquittal but rather produces a verdict of manslaughter instead of murder.

The defence offers significant benefits to an accused. A conviction for second degree murder carries a mandatory sentence of life in prison and strict parole ineligibility rules, whereas a manslaughter conviction carries no mandatory minimum sentence, except if a firearm is used, and allows a murderer to avoid the stigma associated with the label.

The defence will be successful where the murder was committed in response to a wrongful act or insult from the victim that would be sufficient to deprive an ordinary person of the power of self-control and where the accused acted suddenly, before there was time for his passion to cool. The killing must be a spontaneous reaction to an unexpected provocation.

Most honour killings are believed to be premeditated. If the crown can prove premeditation, resulting in a conviction for first degree murder, the defence of provocation will not succeed. However, some killings that may be characterized as honour killings can be spontaneous reactions to something unexpectedly said or done by the victim.

In cases where the crown prosecutor proves that the killing was intentional but not premeditated, the provocation defence is available.

The defence of provocation has been raised in at least three cases that could be characterized as honour killings. These are R. v. Nahar in 2004, R. v. Humaid in 2006, and R. v. Sadiqi in 2013. All of these reported cases were appealed to the appropriate courts of appeal. In the case of Nahar, it was to the British Columbia Court of Appeal. The other two were to the Ontario Court of Appeal.

It is true that in each of these cases, the defence of provocation failed. However, this cannot be taken to have the consequence some have suggested, namely that the defence is now barred in an honour-killing context and that therefore there is no reason to amend the law.

As a general matter, even assuming that a court of appeal determines conclusively that the provocation defence is unavailable in these circumstances, the relevant legal issues have arisen in only two provinces: British Columbia and Ontario. Rulings from one provincial court of appeal are not binding in any other province. Without a ruling on the relevant legal issues from the Supreme Court of Canada, it is simply incorrect to say that the legal questions have been definitely resolved in Canada.

When we come to the substance of what was actually decided by these courts of appeal, a careful reading of these cases shows that the courts did not, as a matter of law, rule out the possibility of the defence operating in situations of honour killings. The defence continues to be available to be raised in cases where family honour has played a role in the killing. For instance, it would be available to an accused who, upon finding his teenage daughter in her bedroom with a boy from school, becomes enraged at this breach of the family's honour code. If he intentionally kills her in the heat of the moment in response to her verbal insults against his cultural traditions and beliefs, he could benefit from the potentially successful defence of provocation.

In the two cases, it was the defence that submitted evidence on the cultural background of the accused to demonstrate how a wrongful act or insult from the victim would give the provocation significance and would have gravity for an ordinary person from the same culture as the accused.

For instance, in Nahar, the accused claimed that he killed his wife in the heat of passion following disrespectful comments from her about men and behaviour such as smoking, drinking, and socializing with men. He introduced evidence that the victim's behaviour was completely at odds with acceptable behaviour for wives in his culture.

The British Columbia Court of Appeal actually found this cultural context to be relevant to understanding how an ordinary person of the same background as the accused would be provoked by the behaviour of the victim.

This may come as a surprise to those who have tried to suggest that all three cases definitively ruled out provocation in an honour-killing context.

This provocation claim failed for different reasons. First, the trial judge had grounds to find that the alleged provocation by the victim was not unexpected to the accused but rather had been going on for several months. In this regard, the killing was on the sudden, following an unexpected provocation. Second, the nature of the provocation by the victim was not found to be such as to cause an ordinary person to lose self control, even assuming that the ordinary person was from the accused's cultural community.

In the Humaid case, the accused alleged that he was provoked by comments his wife made that he interpreted to be an admission of sexual infidelity. The accused led expert opinion evidence that in the accused's cultural tradition, infidelity by a female member of a family was considered a very serious violation of the family's honour and was worthy of harsh punishment by the male members of the family.

The court of appeal expressed the strong view that the application of cultural values that are contrary to gender equality to the defence of provocation was inappropriate. However, this was not the reason the defence failed. One reason the defence failed was that the accused did not introduce any evidence that he personally shared the views his community was said to have. It also failed because the crown had proven premeditation, which is inconsistent with the provocation defence. The views of the court on the question of cultural values were not matters that were necessary to decide the appeal, so they are not binding on lower courts.

Finally, in the Sadiqi case, the accused raised the defence of provocation in the killing of his sister and her fiance by alleging that his sister had refused to seek their father's approval for the proposed wedding and that she and her fiance insulted him in the moments before the murders.

The crown tendered expert evidence of honour killings within the traditional culture of the community of origin of the accused. The jury found the accused guilty of first degree murder. The appeal was about whether the crown's use of expert evidence was appropriate. The court of appeal held that it was. That is the only legal proposition this case stands for.

Despite some helpful discussions on gender equality in these cases, none of the rulings established as a matter of law that the defence is excluded in honour-killing cases. It remains available to be argued by any person accused of murder. The provocation claims failed in these three cases because of the facts and evidence presented and not because of any principle of law.

Taken together, these cases reflect outcomes all Canadians would hope for, but it is purely wishful thinking to say that these cases legally closed the door on the provocation defence in the honour-killing context.

Moreover, there is a long history of the provocation defence being raised and sometimes accepted to excuse spousal murders in Canada in circumstances that closely resemble the Nahar and Humaid cases. The principle difference is that the feelings of dishonour and shame are experienced at the family or community level in the case of honour killings and at the personal or private level in the case of spousal killings. What is the same is that men kill women when they feel that they have lost control over them.

It is high time we amended this defence so that it can no longer mitigate killing in response to a lawful insult. No person has a right to control another, and where people fail to get what they want, they should not have the murder of another person mitigated through a 500-year-old defence that originated in a culture that treated women as the property of their husbands.

This reform is about reaffirming the value of gender equality in Canada and about making it clear that homicidal violence against all women in reaction to lawful conduct will no longer provide an excuse for murder.

Bill S-7 proposes to address this long-standing problem in our criminal law by limiting the defence so that it can only be raised where provoking conduct by the victim amounts to an offence punishable by five years or more in prison.

People should not be able to use the defence that they violently harmed others because they were provoked.

The zero tolerance for barbaric cultural practices act sends a clear message to those coming to Canada that forced marriage, honour based violence or any other form of harmful cultural practices are unacceptable and will not be tolerated.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the other week I had the opportunity to put a number of concerns with Bill S-7 on the record. In general, we believe some of the positive things it hopes to achieve are somewhat small in nature in terms of steps forward.

However, I have raised a great deal of concern about the title of the bill. In reflecting on the short title of the bill, could the member explain to the House if the short title could be used in a court of law? If it cannot be used, why does the government feel so passionately that it has to be “as is”, without amendment?

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, the zero tolerance for barbaric cultural practices act sends a clear message to those coming to Canada that forced marriage, honour based violence and any other form of harmful cultural practices are unacceptable and will not be tolerated in our Canadian society.

The Government of Canada will continue to ensure it will protect Canadians from the harmful barbaric cultural practices and it will continue to protect Canadians vulnerable to these abuses.

That is why we have the strong context in the title of the bill. It is to show Canadians that this type of behaviour is unacceptable.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, this is a very sensitive and complex topic. Obviously, nobody here is in favour of barbaric practices that do not respect freedom. No one is condoning crimes or murders. My wife and I have two daughters, and we would obviously not want them to be forced into marriage.

However, I would like to ask this question: why do the Conservatives systematically use this sort of controversial issue to play politics, divide people and instill fear? The laws that we have are sufficient to prevent people from being forced to marry or from coming up with excuses for murdering someone or throwing acid in someone's face.

I think the Conservatives are just trying to mislead Canadians. This is nothing but demagoguery. This bill is extremely populist and completely unnecessary.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, the one thing I want to be very clear about is that a murder is a murder.

In Canada any type of legal defence that promotes this type of cultural barrier is unacceptable. It is of the utmost importance that we have to protect the rights of those individuals who come to Canada or reside in Canada.

I come from an RCMP background and I have seen what individuals are capable of doing. Having to go to a crime scene and investigate a murder where cultural practices are being used as a defence is unacceptable. That is why our government is looking at making these changes. As a Conservative government, we are here to defend the rights of Canadians.

[Stella Ambler, Conservative, Mississauga South, ON]

Mr. Speaker, could the hon. member address the issue of marriages between young Canadians in their teens and the laws that do not currently exist but which this bill will now address?

I have received a number of letters and inquiries from my constituents who are surprised to hear that the laws across Canada, by province, are not consistent on this matter. Could he tell us a bit about what other countries have done to remedy this situation, and what the bill would do on that issue?

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, countries such as Austria, Australia, Finland, Germany, Italy, New Zealand, Norway and the United Kingdom have 16 as the minimum age, below which no one can marry without parental consent. This is consistent with the proposal in this bill.

Several like-minded countries have set 18 as the age for marriage without additional consent from parents in court, but have no minimum age of marriage. For example, in Belgium, France, Iceland, Ireland, the Netherlands, Spain, Sweden and most of the United States laws are similar to the current law in Canada.

Setting a national minimum age of 16 years for marriage is consistent with the federal legislation that applies only with regard to the province of Quebec, in section 6 of the Federal Law—Civil Law Harmonization Act, No. 1. It is also consistent with what happens now in Canada, where there are few marriages contracted between individuals under 16. However, some limited exceptions are made for mature minors of 16 and 17 years of age under certain circumstances, for example, where one is pregnant.

[The Acting Speaker, Conservative, Bruce Stanton]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Ahuntsic, Foreign Affairs; the hon. member for Québec, Housing; the hon. member for London—Fanshawe, Seniors.

Resuming debate, the hon. member for Notre-Dame-de-Grâce—Lachine.