Citizenship and Immigration Committee on March 31st, 2015

[Chungsen Leung, Conservative, Willowdale, ON]

Thank you, Chair.

Having heard our discussion mostly on forced marriage, child marriage, and other aspects of marriage, I would like to have some clarification on Canada's Civil Marriage Act as well as our common-law marriage act. Why did it take us so long to address the fact that the original age of consent was seven years old? Why is it taking us so long to bring this up to date?

My second question deals with one aspect of the marriage act that is perhaps not addressed or at least our discussion has not addressed it, and that is incestuous relationships? How far do we go to define what is an incestuous relationship?

[Lisa Hitch]

All right. Well, those are very interesting questions.

Why has it taken us this long to codify the law of marriage? I really don't know what the answer would be. I could speculate but that's all I could do.

I know that there was an agreement by the Government of Canada to codify this aspect of minimum age—at the Uniform Law Conference of 1973—as soon as it was able to, given competing legislative priorities.

[The Chair, Conservative, David Tilson]

I don't think this topic is in the bill, unless you're proposing an amendment.

[Chungsen Leung, Conservative, Willowdale, ON]

No, there's no amendment. It's just for clarification.

It's an interesting topic. Incest—

[The Chair, Conservative, David Tilson]

Well, it may be interesting, but it has nothing to do with the bill.

[Chungsen Leung, Conservative, Willowdale, ON]

Okay.

Well then perhaps you can share with us what process we have gone through to bring our marriage act up to date to include these elements of forced marriage, and so on? What was it before?

[Lisa Hitch]

As I was saying before, I think part of the reason for making the amendments now is that although these aspects are in the common law, the common law is not as accessible, particularly for people who are not legally trained, as a statute on the books.

The idea is to codify the three elements, of minimum age, the requirement for free and enlightened consent, and the requirement that all prior marriages have to be dissolved before you can marry. It's not that any of these, except for the minimum age, are new, but just to make sure that it's all clearly on the books.

[Chungsen Leung, Conservative, Willowdale, ON]

Now we mentioned peace bonds earlier.

What methods or procedures are there for us to reach into a family to protect a child with a peace bond in case there's a suspicion that they may be transported out of this country for a marriage that is not wanted?

[Gillian Blackell]

Thank you.

If a child is under the age of child protection in the jurisdiction where they reside, then the child protection authorities would become involved and stand in on behalf of the child, for any act, in terms of requesting a peace bond or any other intervention with the family to help them become aware of the harmful impact of forcing a child into a marriage.

Normally that would be the role for the child protection. However, if the child is over the age and speaks to a victim services worker, that person could apply for the peace bond on behalf of the child. It's the same if the child contacts the police; usually it is the police who apply for peace bonds on their behalf.

[Chungsen Leung, Conservative, Willowdale, ON]

So the agencies that would be responsible for this would be, say, social services or the police or other law enforcement agencies.

[Gillian Blackell]

Exactly. Normally that would be the case, although anyone could do so on behalf of a victim if they felt that was necessary.

[The Chair, Conservative, David Tilson]

Okay.

Mr. Sandhu.

[Jasbir Sandhu, NDP, Surrey North, BC]

Thank you, Chair.

Thank you for being here this morning. It's been quite an informative session.

I want to get back to the provocation defence. You mentioned that there has been about a dozen cases where the prosecutor or the defence or the victim statement has mentioned provocation. Would that be correct?

[Joanne Klineberg]

Yes.

Those would be cases that could be characterized as honour killings, but it wasn't in all of those cases that the defence of provocation was raised.

[Jasbir Sandhu, NDP, Surrey North, BC]

How many cases have used provocation as a defence?

[Joanne Klineberg]

There were at least three cases. All three of the cases went to their respective provincial courts of appeal on legal issues relating to the defence.

The first case was Nahar out of British Columbia, which was decided by the court of appeal in 2004. In that case, it was the accused who brought expert evidence from someone in his community. The accused was a member of the Sikh community, and he brought evidence before the court that alleged that the provoking conduct of his wife—it was a case where he stabbed his wife to death—was in the nature of defiant and disrespectful behaviour. She was smoking cigarettes and drinking alcohol and having conversations and meetings with men not to his liking. He raised—

[Jasbir Sandhu, NDP, Surrey North, BC]

I don't want to get to know the details.

There were three cases where this was used. In those three cases was the judgment influenced by the provocation defence?

[Joanne Klineberg]

In all three cases the defence was raised, but it failed.

[Jasbir Sandhu, NDP, Surrey North, BC]

We don't have any case at all that has been successful using provocation in Canada?

[Joanne Klineberg]

No cases to date have been successful.

[Jasbir Sandhu, NDP, Surrey North, BC]

Let's go to polygamy. As I read the notes here, and from the testimony I've heard, polygamy has been illegal in Canada for over a hundred years. Would that be correct?

[Joanne Klineberg]

Yes.

[Jasbir Sandhu, NDP, Surrey North, BC]

Wonderful. We haven't had any successful cases being tried over those hundred years. There is one case that's going through the courts right now. With this new law we're essentially creating two sets of rules, one for immigrants and one for the citizens. Would that be correct?

[Joanne Klineberg]

The criminal law with respect to everyone in Canada is exactly the same. The amendments in Bill S-7 in no way affect the applicable criminal law that could apply; it's only law in relation to the immigration context.

As a general matter, everyone who's in Canada is subject to being prosecuted under the same criminal offence. I would let my colleagues from Immigration Canada speak to the immigration-related consequences of polygamy.

[Jasbir Sandhu, NDP, Surrey North, BC]

Why wouldn't we try those immigrants under our existing law? What is the need for this new law?