Citizenship and Immigration Committee on April 30th, 2015

[Laila Fakhri]

Do you mean just the title?

[Jim Eglinski, Conservative, Yellowhead, AB]

I mean concerning “barbaric practices”.

[Laila Fakhri]

I believe it is an issue that needs to be addressed and that this will pass a clear message.

[Jim Eglinski, Conservative, Yellowhead, AB]

It's a good message, then?

[Laila Fakhri]

I agree with it, yes.

[Jim Eglinski, Conservative, Yellowhead, AB]

That it's a good clear message....

Thank you.

[The Chair, Conservative, David Tilson]

I think our time has concluded.

I want to thank Ms. Fakhri and Mr. Kurland.

Ms. Fakhri, thank you for taking the time to come give us your presentation. It's been very helpful.

Mr. Kurland, you never fail to disappoint me in your presentation. I always enjoy it.

Thank you very much to both of you.

We will suspend.

[The Chair, Conservative, David Tilson]

All right, we will reconvene with the second part of our meeting. I'd like to introduce our three witnesses, our three guests who are going to help us with this bill this morning.

We have Kamal Dhillon. She is the author of Black and Blue Sari. We have Madeline Lamboley, who is a Ph.D. candidate in criminology. We also have J. Michael Spratt, who is a criminal lawyer from Abergel Goldstein and Partners.

Good morning to you all.

We're going to start with you, Mr. Spratt.

[J. Michael Spratt, Criminal Lawyer, Abergel Goldstein and Partners, As an Individual]

Thank you.

[The Chair, Conservative, David Tilson]

You each have up to eight minutes to make a presentation.

[J. Michael Spratt]

I'll try to use it all.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, David Tilson]

We have to move on, Mr. Spratt. I'm sorry. We have time limits.

[J. Michael Spratt]

I welcome questions on it, because it is an important issue.

[The Chair, Conservative, David Tilson]

I am sure our colleagues will have some questions for you.

Ms. Dhillon, you have up to eight minutes.

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

Thank you for inviting me again.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, David Tilson]

Thank you for your presentation, Ms. Dhillon.

Ms. Lamboley, it's your turn. You have up to eight minutes. Thank you for coming.

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

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

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

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

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

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

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

Why? There are four reasons.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, David Tilson]

I'm afraid I'm going to have to cut you off, ma'am.

We're well over time.

Mr. Shory has a question.

[Devinder Shory, Conservative, Calgary Northeast, AB]

Thank you, Mr. Chair.

Thank you, witnesses.

Mr. Chair, I'd like to make a quick comment on Mr. Spratt's commentary, because he mentioned provocation.

Of course we all know, as you know, Mr. Chair, that provocation is a legal defence in Canada. But at the same time, the defence we are talking about in the context of honour killing was raised at least three times in Canada and the alleged provoking conduct in these cases was real or perceived marital infidelity and the other conduct with the victim the offender perceived as disrespectful or defiant toward them or their families or their family culture.

These particular claims failed—Mr. Spratt will know this as well—due to the inadequacy of the supporting evidence. Of course the proposed amendment in this bill we are talking about would modernize the defence so that it only applies where the alleged provoking conduct was objectively serious, namely where it would amount to a criminal offence with a maximum sentence of five years. Of course the reform would limit the defence so it no longer excuses murder where the provoking conduct of the victim was lawful.

Much has been made of the fact that the defence has failed where it has been raised in the context of honour killing here in Canada. While this is true to date, there is nothing preventing a court from accepting it in the future. It may be true in common law, but in this society now a man's wife is not his personal property. These are the times we are dealing with. Of course I also heard the comment that a peace bond already exists. I also heard that maybe we don't need this bill because this is not required. But when we talk about potential immigration—forced marriages, or underage marriages for the purposes of bringing someone for immigration—I believe it comes under the Immigration Act.

Ms. Dhillon, I'm coming back to you because I have very limited time.

I believe this bill sends a very clear message to individuals coming to this country that harmful and violent cultural practices are unacceptable in Canada. These particular practices are incompatible with Canadian values and will not be tolerated here. As you heard from other witnesses also, some critics say that the bill is not required, and it seems as if they are saying that the government is creating a problem that does not exist. I don't agree with them.

What are your thoughts on this, and do you believe this bill is not needed?

[Kamal Dhillon]

I believe it's needed. It's a good start.

I'd like to see stiffer sentences. I'd like to see a very strong message sent out to the perpetrators that when we say “zero tolerance” we mean zero tolerance. I'd actually like to see more done for victims over the age of 18. Once they finish high school, then what?

[Devinder Shory, Conservative, Calgary Northeast, AB]

Last week we heard from a witness, Mr. Tahir Gora. He's from the Canadian Thinkers' Forum and I'll quote what he said:

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.

Do you agree, and do you want to make a comment on it?

[Kamal Dhillon]

No, I agree. I think it's absolutely right.

[Devinder Shory, Conservative, Calgary Northeast, AB]

Polygamy is an affront to Canadian values and I was glad to hear it has been illegal since 1890, but we all know it is still a shameful reality in a country like Canada. How will this bill protect Canadian values and convey to these communities that such practices are not welcome here in Canada?

[Kamal Dhillon]

I think first we need to educate people. I think a lot of people are not aware of this new bill, so more awareness, more education, and going to the schools and letting students know these are their rights, because they are still minors. They're 16 years old and they need to be taught.

[Devinder Shory, Conservative, Calgary Northeast, AB]

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

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