Citizenship and Immigration Committee on April 23rd, 2015

[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.

[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]

Thank you, Mr. Gora.

Mr. Gora has submitted his brief to us, and it will be translated. The document will be distributed to the members of the committee as soon as it is available in both official languages.

Before I give the floor to Ms. Desloges, I would like to welcome Kathryn Marshall. She is a lawyer and is appearing here today as an individual.

Thank you for joining us, Ms. Marshall. You will soon have an opportunity to make your opening statement.

Madam Desloges, you have eight minutes for your opening remarks.

[Chantal Desloges, Lawyer, Desloges Law Group, As an Individual]

Thank you very much.

I've been practising as a lawyer for over 15 years, specializing only in immigration and refugee law. I'm a regular media commentator on immigration issues. Therefore, because my expertise lies solely in the area of immigration law, I will confine my remarks strictly to the immigration provision of this particular bill. There are other witnesses who I know have a lot more expertise than I do in forced marriage and honour-based violence.

I believe the immigration provisions of Bill S-7 send a very strong statement that polygamy is not and will not be tolerated in Canada. The negative effects of polygamy on women and children are very well documented in sociological studies. Whatever the practical effects of this legislation may or may not be, the bill does at least send a concrete statement about Canadian values. I think this is important in a context where our society is increasingly relativist and, in a rush to respect other cultures, we often overlook the fact that there is a reason why our own Canadian culture has developed in the way that it has.

Much has been made, as my friend Tahir just mentioned, about the rather inflammatory title of the bill. Allow me to say that, in general, I'm not a fan of hyperbolic language when it comes to naming legislation; however, it may not be for the reason you think. Forced marriage, honour killing, and polygamy are barbaric. To the extent that they are cultural practices, it's not a culture I think we should accept or promote, even tacitly by omission. Should there be zero tolerance for these behaviours? Absolutely yes. That being said, I think the language used in the title detracts from serious analysis of the content of the bill. Let's face it, many people, particularly members of the public, never make it past the title. I think naming pieces of legislation with tag lines lessens the decorum of the legislative process and deters citizens from engaging in meaningful discussion of the bill's actual content.

Substantively, my suggestions for improvement on this bill are pretty simple. Practising polygamy is not really defined. The bill refers us to the Criminal Code definition of polygamy, but if you read the Criminal Code definition, that also is not very well defined and leaves a huge grey zone for interpretation as to what it means to be practising polygamy in Canada.

The Criminal Code says that everyone who practises or enters into or in any manner agrees or consents to practise or enter into any form of polygamy or any kind of conjugal union with more than one person at the same time, whether or not it's recognized as a binding form of marriage, is considered to be practising polygamy.

Only one case has ever gone to court on the interpretation of this provision in the criminal context. In that case, none of the parties to the litigation could actually agree on what it meant. Even the attorneys generals who were involved in the case could not agree on what it actually meant. It was a single trial-level judgment that has never gone up on appeal, so the issue is really far from settled in the criminal context.

So what does it mean to be practising polygamy in Canada? Does it mean only multiple legally sanctioned marriages? Could it be a legally sanctioned marriage and the second marriage being just a religious one without being legally sanctioned? What about common-law relationships? Those are conjugal unions. Would it constitute practising polygamy in Canada if your first marriage is not dissolved and you enter into a common-law relationship with the second person?

You start to see the problem. If there will be serious consequences such as deportation attached to this behaviour, I think we need to draw a clear line in the sand so that people can amend their behaviour to know if they're going to be onside or offside of the legislation.

Another thing to note about this legislation, and it could be a plus or it could be a minus depending on your point of view, is that in an immigration context, you don't have to prove accusations against people on a beyond-a-reasonable-doubt standard like you do in a criminal court. You need to prove it on a basis of reasonable grounds to believe, and you can imagine the implications of that. So on one hand, it's a much lower standard, which will make it easier to apply the consequences of the act to people without having to go through the Criminal Code process, but on the other hand, there are really not very many checks and balances applied to it as there would be in a criminal context.

One thing I think could bear improvement is that nowhere in this immigration amendment does it talk about the effects on children.

I find that troubling, because it has the potential to separate families—it has, I think, as an intention to separate families—and wherever you stand on the moral ground of it, I think the kids are the innocent parties in this. There needs to be something that will recognize that and live up to our international obligations to respect the rights of children.

I'm also wondering if this is intended to be retroactive. There may be people who immigrated to Canada and are already living here as permanent residents and they may have had multiple marriages before coming to Canada—which was legal in their country, and they would not have been violating the law. They may now retroactively face consequences for something that at the time was not considered wrong.

Overall, I support a strong message of zero tolerance on polygamy. I think that's the right thing to do. I don't think you'll have any serious debate in the Canadian public as to whether we should send a strong message on polygamy. However, I do think that with these improvements to the immigration piece it could be a really positive force for reinforcing Canadian values.

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

Thank you, Madam Desloges.

Madam Marshall, you now have eight minutes for your opening remarks.

[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.

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

Thank you, Madam Marshall.

Mr. Menegakis, you have the floor.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Madam Chair.

A big thank you to our witnesses for appearing before us. This is obviously a very important subject that we're discussing here today. This bill is addressing some atrocious things that unfortunately are happening in our country. It's 2015; you wouldn't think such practices would be taking place in a welcoming, multicultural, and loving country like Canada, but yet they happen. They happen on a daily basis.

Some critics of this bill have said we don't need this bill. They feel that there is enough legislation in place already that deals with many of these issues and that we don't need to bring any further focus to it. I wonder whether I can get a general comment from each of you about whether you believe this gives an additional tool in the toolbox to help us combat a problem that unfortunately still exists or whether you think what we have is fine.

We'll start with Madam Desloges.

[Chantal Desloges]

I can understand why some people might find some redundancy, because the Criminal Code already criminalizes polygamy. If you are criminally convicted, you can be deported from Canada on that basis. But I think what people are missing is the fact that having an immigration inadmissibility sanction, you can put people through an administrative process on a much lower standard of proof and make it easier to expel people from the country than it would be if you put them through a criminal court.

Criminal prosecutions are time-consuming and expensive, and there are a lot of checks and balances. In many cases this is a positive thing, but putting people through an administrative process obviously facilitates people becoming inadmissible and removable from Canada. If that's the goal, then it certainly achieves it.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Mr. Gora.

[Tahir Gora]

I certainly feel that this bill would provide an additional tool in terms of tightened legislation against polygamists and forced marriages issues, because what we have seen and what we see today is that polygamy cases, for instance, are not registered and they don't come under the radar.

So as this bill passes in the House of Commons, we hope there will be some punishment for those clerics and people who facilitate polygamy in Canada. Certainly this provides an additional tool.

[Kathryn Marshall]

The bill will provide many tools by clearing up some of the ambiguities that exist within common law when it comes to some of these issues. It is really important to codify things like the legal age of consent for marriage. That's something that should be in our Civil Marriage Act. It should be something that is the same across the board in Canada.

As well, I think some of the Criminal Code's amendments are really important, especially when it comes to preventing people who are being charged with honour killings from using provocation as a defence. I think that ensuring that the only acts that can count as provocations are the ones that are actually criminalized within the Criminal Code is really important, as well, because it's addressing the fact that people who commit these crimes do use their cultural differences, attitudes, and beliefs as a defence. That's just something that we cannot stand for in this country.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you.

Mr. Gora, it's quite disturbing to hear of the cleric in the Toronto area, I believe you said, who made the comment that if he had a choice between Islamic law and Canadian law, he would follow Islamic law. Of course, that's his interpretation of Islamic law; I don't want to give the wrong impression about Islam based on his comments.

However, having said that, one can only imagine what Canada would look like if everybody felt that way. This is a very multicultural, welcoming, accepting, and tolerant country and one in which we all live with respect for one another's language, culture, and so forth. If everybody felt, “Hey, if my faith says this, or my interpretation of my faith says this, I don't care what the Canadian law says”, what kind of a society would we be living in?

Certainly the issue of polygamy is one you touched base on. We had a member of Parliament, I believe the member from Newton—North Delta, stand up in the House and say that we already have polygamy laws in Canada, so why do we need to address the issue? I don't want to politicize this, but certainly it's happening. It's a problem. We know that, and we need to keep focus on it.

I want to focus my question on forced marriage, especially of a young girl, which we certainly believe is barbaric. Somebody could be born and raised in this country and be forced into a marriage whether she likes it or not. If she doesn't, it is the culture of that particular family to ridicule her out of the family unit. In many cases there's physical violence as well.

Can you comment on how the proposed amendments in this bill will prevent young girls from being taken off Canadian soil for this to happen?

[Tahir Gora]

Yes, sir.

Before I comment on that, I'll just add one line on, as you said, Canadian law versus faith-based laws. Certainly it's not just one cleric who is saying this. This is the basis for the whole sharia law and what some of the clerics look for. We as Canadians need to fight against that mindset, for sure.

Responding precisely to your question, I would say that, as this bill proposes, there will be tough punishments against those individuals who take their children out of their world back home for forced marriages. I think those punishments, as introduced by the bill, will certainly help our society.

I mentioned that unfortunately some of the forced marriages cases are happening here in Canada. We have witnessed cases, especially in the greater Toronto area, where girls and boys are not willing to marry each other, but because of cultural inhibitions and barriers, their parents, their guardians, force them to marry against their wills.

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

Thank you. I'm sorry, but time has expired.

Madam Mathyssen, you have the floor.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you very much, Madam Chair.

Welcome to our witnesses. This is obviously an important bill. It touches a lot of very sensitive issues, so we appreciate your expertise.

I'll start with you, Madam Desloges. I was quite interested in a number of things that you had to say. I wonder, though, how you think victims are best protected. What would you recommend in terms of protecting these vulnerable people?

[Chantal Desloges]

Well, as I've said publicly before, one thing is that within the immigration system, when it comes to forced marriage, for example, there are very few checks and balances to protect women within the spousal sponsorship process. Often when spouses are being sponsored to Canada, there is no interview. If there is an interview, it's only with the foreign person; it's never with the Canadian sponsor who's sitting here in Canada. If the Canadian sponsor happens to have been coerced, there is no mechanism in the entire process for that to really come out. Lawyers aren't really that well attuned to look for those things, and the government never interviews the sponsor to see if there's been any coercion.

So you can go from start to finish and never have it come up. I think there needs to be something built in, either an interview process or an education piece, to inform not only women but everyone involved in the process of their rights.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you.

You touched on something that we've heard concerns about, the conditional permanent residency, and the fact that women can be held hostage by having to remain in a conjugal relationship for at least two years, even if they're being abused and terrorized. Do you have any response to that concern?

[Chantal Desloges]

The current provisions allow for an exception for people who are being abused. If they can demonstrate that they have been a victim of abuse—how to demonstrate that is a little bit problematic, but leave that alone for a minute—then they're exempted from the two-year condition. I do think that it probably would be a good idea to add coercion and forced marriage into an exemption from the condition. You may be coerced into a marriage, but not necessarily be suffering abuse. So I do think it would be a good idea to build an exemption in.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Okay.

That leads to me my next question in regard to applicants and permanent residency, and the need to absolutely determine or make sure that they feel safe and secure if they wish to testify against an abuser or someone who has coerced them. Are there enough protections in terms of women being able to come forward? Are they trapped by their fears of police, their fears of being isolated from their families?

[Chantal Desloges]

They may very well have psychological inhibitions or real fears of physical violence in terms of coming forward, but I think you could say that about any criminal behaviour. I think you could also say that about spousal abuse. It's not a reason not to enforce, whether that be criminally or through the immigration system.

One thing that's interesting is that in the administrative immigration system by which something like this would come forward, the rules around those types of hearings are very loose, because it is an administrative process and not a criminal process. I've never seen a case where they, for example, offered the victim a chance to testify behind a screen or not have to face the abuser in the same way that they do in criminal court. Maybe that's something that the board needs to consider.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

You said something that I found a bit chilling, and I just wanted a clarification. You said that with regard to the effect of this law on children, there was a real potential to separate families, and then you said perhaps the “intention” is to separate families.

Is that what you meant, or...?

[Chantal Desloges]

The reason I said that is that if you're in a polygamist relationship, one of the ways you can cure that is just by divorcing one of the spouses. I'm not sure if it's a serious concern, but it's a marginal concern in the back of my mind that maybe we might be encouraging people to split up their families and ditch a spouse in order to become compliant. I doubt that would happen with people living overseas, but I'm concerned that it may happen for people living in Canada. So then what happens to those children? What happens to the wife who's been discarded? That is a bit of a concern.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Yes, it's one of those unintentional consequences that we've been worried about.

[Chantal Desloges]

I didn't mean to say that there's some nefarious purpose to split up families or anything like that; it's just this concern in the back of my head.