Citizenship and Immigration Committee on May 5th, 2015

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

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Aspin.

That concludes our first hour. I want to thank you, Ms. Raza, Ms. Go, and Ms. Fabricius for coming and giving us your thoughts and helping the committee prepare remarks for this bill.

Thank you very much.

We will suspend.

[The Chair, Conservative, David Tilson]

We'll start the second panel, ladies and gentlemen.

We have two representatives from the Canadian Bar Association: Peter Edelmann, the executive member of the immigration law section, and Suzanne Costom, the vice-chair of the criminal justice section. We also have Debbie Douglas, the executive director of the Ontario Council of Agencies Serving Immigrants. Welcome back, you've appeared many times before, thank you.

And we have Arooj Shahida.

Good morning to all of you.

I think we'll start with you, Ms. Shahida. You have up to eight minutes to make a presentation to us.

[Arooj Shahida, As an Individual]

Good morning, Mr. Chair and honourable members of the Standing Committee. Thank you for inviting me to be present today to speak to this important piece of legislation.

My name is Arooj Shahida. I am a local Toronto radio host and producer of a South Asian-centred radio show called Canada Zindabad. The show is an initiative to promote greater awareness and appreciation of the Canadian Charter of Rights and Freedoms. My vision and hope is to educate and foster an appreciation of these freedoms within our community, especially the South Asian community living and working in Canada, and to truly own these values, so we may contribute fully towards this country and all of our prosperity.

The charter forms the basis of Canadian values and is wide in its humanitarian scope. lt is not be taken for granted. As the Canadian value system is cherished with many fundamental freedoms, it demonstrates an ongoing commitment and respect for the rights of each and every individual. With a specific focus on the South Asian community that I seek to motivate, and through the interactions I have had with this demographic, I have encountered circumstances that the current legislation seeks to address.

In this respect, as I am an activist for human rights, women's empowerment, and youth development, I am in full support of the intent of Bill S-7, the zero tolerance for barbaric cultural practices act, tabled by the Honourable Minister for Citizenship and Immigration, Chris Alexander.

The stories of the women I have encountered resonate with me on many levels—as a Canadian citizen, as a member of the South Asian community, as a woman, and, as an individual. The recurring theme or undercurrent of all these stories is fear: fear of the loved ones closest to them, fear of the perceived retaliation from them or from their community, and fear of losing the bright future that would otherwise be available to them in this great country. It is also fear for their lives and fear of being abandoned by family.

But the most distressing thing I have found, without a doubt, is the constant feeling of hopelessness, the feeling that one cannot seek and find real assistance to change their situation or support to fight for their individual rights, while at the same time protecting the close-knit familial relationships that form such a fundamental part of these communities.

There have been shameful examples of these fears that have become reality, women who have been betrayed by those whom they had trusted throughout their lives. Jaswinder Kaur Sidhu from British Columbia was killed on her own mother's orders in Ludhiana, India. There was the Shafia family tragedy in Kingston, Ontario in which Zainab, 19; Sahar, 17; Geeti, 13; and, Rona Amir were murdered by Rona's husband, second wife and son. Khatera Sadiqi, 20, and her fiancé, were shot to death at an Ottawa shopping plaza. Aqsa Parvez, 16, was killed by her father and brother in Mississauga, Ontario.

What can we call these other than barbaric cultural practices? These are a few of the most severe examples of the tragedies that can occur in the closest of social relationships. These relationships form a major obstacle to this legislation but are also the key to its success.

I have experienced insights into this topic during my live radio show, especially during a recent call-in session during which I played a recent interview with the Honourable Minister Chris Alexander on Bill S-7. I received calls from primarily male individuals, as well as females, but fewer and farther between. When I asked the women to comment on air, they were clearly hesitant, as if someone might recognize their voice and they would end up being in trouble. This reminded me of women I encountered during volunteer work with a psychiatrist in a hospital in Pakistan, where women would not speak a single word in the presence of other family members about their issues or problems.

If the honourable members would permit me, please consider the following for a moment. Remember yourself in your youth, free to pursue your education, to do the activities you enjoy, to be with the friends that you like, to dream about the future that was possible. Now imagine that the people who have raised you, the siblings and extended family who are the only ones you have ever known throughout your life, tell you that the future you had hoped to have is not in store for you.

It is very difficult to imagine, but when faced with retaliation and rejection from those who you know and love, it is an overpowering and deflating state, similar to the woman who struggles to find a way out of domestic abuse situations. There's the feeling that they have no one to turn to, no path to escape, with only misery if they exercise their personal freedoms. It can leave them without hope and resigned to their fate.

I ask that the honourable members of this committee please consider as an important part of their review how we can truly help the victims of these horrible activities by preventing them from being victims at all.

With this bill I can see the desire to tackle issues that have plagued these groups for years and years. The challenge is real, the obstacles are many, but I am hopeful this bill is the beginning of a direction towards significant change in not only how we deal with those who believe they can trample the rights of others, but in how we can successfully reach out and provide hope to those who have none.

Canada has always been a leader in protecting basic human rights and freedoms and I applaud our representatives for again taking the lead on these issues. I hope the honourable members will look to making this piece of legislation an effective, practical law, which will support the women and youth who live this reality in their daily lives.

Thank you.

[The Chair, Conservative, David Tilson]

Well, thank you, Ms. Shahida, for your presentation. Our other two guests will have statements similar to yours, and then members of the committee will ask questions. Thank you.

Ms. Douglas, welcome back.

[Debbie Douglas, Executive Director, Ontario Council of Agencies Serving Immigrants (OCASI)]

Thank you. Good morning.

OCASI, as many of you know, is the collective voice of immigrant- and refugee-serving agencies in Ontario. The council was founded in 1978. We have 220 agencies around the province that work with immigrants and refugees on many issues, including violence against women and girls.

I would like to thank the committee for giving me the opportunity to comment on Bill S-7. OCASI is deeply concerned about the bill: specifically, that it will potentially profile certain racialized communities, single out those members for additional scrutiny, and use immigration law to impose a double punishment for certain offences above and beyond what would be imposed on someone born in Canada.

We make three recommendations.

The first is that the bill be withdrawn.

The second is that the government should use all the measures already available to it to prevent violence against women and protect their human rights, including the following: make broad and sustained investment in public education and violence prevention programs; eliminate systemic barriers that prevent women from reporting violence and abuse, such as the conditional permanent residency of sponsored spouses; ensure supports for victims of violence, including social housing, income support, and economic stability; and invest in social supports for immigrant women, including settlement services, language training, and labour market integration programs.

The third recommendation is that the government should invest in a national action plan to change attitudes to prevent violence against women, including actions to challenge racism and xenophobia.

These recommendations are based on the following observations regarding the bill.

In regard to polygamy, since 1892 Canada has made it illegal to have more than one spouse. Current immigration law allows the sponsorship of only one spouse. Therefore, Canada already has measures to prevent the entry of a polygamist family. The only change achieved through Bill S-7 is to single out only immigrants for special treatment.

It will do that by introducing new punitive measures through immigration law that will result in double punishment and will profile certain communities to stop those members from entering Canada and to remove those already in the country. These measures will punish women rather than protect them, because, under the current language of the bill, all those involved in polygamy, including women who are forced to marry their polygamist partner with or without their knowledge, will also be impacted. If such a woman experiences violence in her relationship, she will have no access to services and will be vulnerable to deportation, and Canadian-born children may be separated from their parents.

In regard to forced marriage, the Criminal Code already has provisions that can be used to deal with issues such as violence, coercion, and kidnapping, which often occur in a situation of forced marriage. While criminalization is one of many provisions that may be necessary to prevent and address violence against women, it cannot be the only approach that governments adopt. Bill S-7 seeks not only to criminalize forced marriage but also to introduce additional punitive measures through immigration law that seeks to single out immigrants for a double penalty. Under the new proposals, not only the perpetrators but the vulnerable members of the family who themselves face coercion are likely to be criminalized and face deportation, thus further endangering women.

The bill would exacerbate the vulnerability of women who arrive as sponsored spouses. Conditional permanent residency for sponsored spouses, introduced by the Canadian government in 2012, provides an exception for intimate partner violence. But even with the exception, the vast majority of sponsored women who fall under this conditional permanent residency still remain in their relationships because of fear of deportation.

Bill S-7 and other related policies and regulations are premised on the belief that violence against women is more prevalent in particular communities, including immigrant communities. You heard from our earlier speakers some of the statistics about Canadian women and violence. A 2013 Statistics Canada study found that spousal violence is less prevalent among immigrant women than Canadian-born women. Further, there is no evidence that violence against women is more likely to occur in certain types of spousal relationships when compared with others.

As statistics show, violence against women is very much a problem in Canada, including among those of us born in Canada. We know that women in all walks of life experience violence, including parliamentarians, and very few women report it. Even when women report violence, such as those seeking answers in the case of missing and murdered aboriginal women, they do not always get the safety and resolution they are seeking. We recognize that it is not reasonable or effective to force Canadian-born women to report violence, so how can we expect it to be any different for immigrant women?

Bill S-7 will not prevent or end forced marriage but could instead drive it underground and make women more vulnerable by isolating them from their community and yet not provide them with any other recourse for ensuring that they have status in Canada.

We heard from our guests from northern Europe this morning that since the passing of their law, they have not had one case in the courts. I was very surprised to hear my colleague here in Canada, Ms. Raza, talk about the many prosecutions in England, because our information from the research that was done by the South Asian Legal Clinic of Ontario suggests that since that law was passed there last year, there has been no persecution, which reinforces our fear that it will be driven underground.

We also want to comment on the title of the bill. The title of Bill S-7, the language used in the discourse around the bill, and the legislative amendments it seeks to introduce all combine to invoke racist stereotypes and xenophobia towards certain minority, racialized, and religious communities in Canada. We heard one of the lines of questioning where one of the witnesses was asked to comment on the kinds of communities based on ethnicity and culture where we are finding forced marriage and violence against women. I think it is instructive that all the communities named were racialized and from a particular part of the world.

It is a complete contradiction of the discourse of democracy and respect for many of the communities that make up the nation that we call home. It suggests that violence against women is particular to specific communities, and reinforces the notion of culture as the root of violence rather than systems of oppression, including patriarchy.

Ontario’s sexual violence action plan is a good first step to our changing these attitudes. We encourage the federal government to explore a similar action plan at a national level, including action to change the discourse of racism and xenophobia.

[The Chair, Conservative, David Tilson]

I'll ask you to wind up, Ms. Douglas, please.

[Debbie Douglas]

In conclusion, I want to say that we welcome the government's efforts to prevent violence against women and girls. We suggest once again that the best way to do that is to withdraw Bill S-7, remove existing systemic barriers such as conditional permanent residency for sponsored spouses, and invest in programs and services for the economic empowerment of women.

I look forward to our conversation.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Douglas.

Ms. Costom and Mr. Edelmann, between you, you have up to eight minutes to make a presentation.

Thank you for coming.

[Suzanne Costom, Vice-Chair, Criminal Justice Section, Canadian Bar Association]

Thank you for the invitation to present the Canadian Bar Association's views on Bill S-7.

The Canadian Bar Association is a national association of over 36,000 lawyers, notaries, academics, and law students, and an important aspect of our mandate is to seek improvements in law and the administration of justice. It is from that perspective that we come to speak with you today.

Our submission on Bill S-7 was prepared by the criminal justice section, the immigration law section, our children's law committee, and our sexual orientation and gender identity conference.

It goes without saying that the Canadian Bar Association supports any legislation that would eradicate discrimination against women, inequality, and violence against women and children, and the proponents of this bill suggest this law will do just that. Unfortunately, our analysis suggests otherwise.

Before commenting on the substance of the bill, a brief word about the short title. Here I'd like to echo the remarks of the previous speaker, Ms. Douglas. As she has pointed out, the title is divisive, and it's misleading because it suggests that violence against women and children is a cultural issue limited to certain communities.

On a broader level, the Canadian Bar Association has consistently recommended that the government refrain from using short titles that seek, in our opinion, to inflame the emotions of the Canadian public rather than inform. For example, this legislation would radically modify the partial defence of provocation and yet nothing in the short title informs the public of that in any kind of way.

The partial defence of provocation has existed in the Criminal Code since its inception in 1892, and as we all know, it does not exist for all crimes. It is a partial defence available only in the case of a murder charge and it would reduce murder to manslaughter where the conditions set out in the code apply. The existence of this defence in the code or of this partial defence in the code is a concession to the fact that at the end of the day we are all only human and we all have our breaking points. Bill S-7 would significantly raise the threshold for the availability of this partial defence.

Proponents of this bill argue that this modification is necessary in order to prevent the provocation defence from being used in so-called honour killing cases. However, our research has indicated that this defence has never been successfully invoked in these sorts of cases. This was confirmed, in fact, by a representative from the Department of Justice, Joanne Klineberg, a senior counsel from the criminal law policy division. The law is seeking to address a problem that simply does not exist.

In 2010 the Supreme Court stated the following about the defence of provocation. I'm quoting from the case of Tran and I'm just citing selected passages:

Criminal law is concerned with setting standards of human behaviour....

Everyone, whatever his or her idiosyncrasies, is expected to observe that standard....

The “ordinary person” standard is informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Charter of Rights and Freedoms.

...there can be no place in this objective standard for...any form of killing based on such inappropriate conceptualizations of “honour”.

Our courts have also explicitly stated that provocation is not available as a defence in honour killing type situations.

The fact of addressing a problem that doesn't exist is unfortunate, but it is particularly problematic because the modification may also have unintended consequences, and that brings us to our next point.

This is a major change to substantive criminal law. It has been done without any informed and comprehensive assessment of the justifications for amending the defence without examining the relevant jurisprudence, and without looking at the practical impact of these amendments on the criminal justice section as a whole. There should be broad-based consultations when an amendment of this nature is taking place, and none of that has happened.

Finally—and this is my last point before turning to Peter—as practitioners it is our belief that the change to provocation will be very difficult to apply in practice. The new threshold says it will only be available if the conduct of the deceased would amount to an indictable criminal offence that is punishable by five years or more as an imprisonment. This will require a lot of evidence, complex submissions on behalf of the defence and the Crown, and it will undoubtedly make more complex what is undoubtedly already a complex murder trial. I can provide you with further examples upon questioning.

Thank you and I pass you over to Mr. Edelmann.

[Peter Edelmann, Executive Member, Immigration Law Section, Canadian Bar Association]

Thank you.

Thank you for inviting us to appear before you today. I will briefly talk about the changes proposed to the Civil Marriage Act before I turn my attention to the Immigration and Refugee Protection Act.

We agree that steps to reduce the incidence of forced marriage are laudable, in particular by stating that marriage requires the free and enlightened consent of two persons. In terms of the age when a person can get married, I will stress the comments made by my colleague.

In general, we recommend that short titles be used to succinctly and neutrally indicate the bill's subject matter. As a line separating civilization from barbarism, the arbitrary nature of the day when a person turns 16 years old is striking.

We have very practical concerns about the change to IRPA. While we would generally commend the legislature for using precise language from the Criminal Code, there has been very little jurisprudence interpreting section 293. The last reported case from a prosecution would appear to have been almost 80 years ago.

The most detailed study of this section by our courts was in the reference before the B.C. Supreme Court in 2010-11. In numerous hearings spanning five months, it heard from two attorneys general, an amicus curiae, 11 intervenors, and many witnesses, and hundreds of reports on polygamy and polygynous relationships, and the history of the provisions was studied.

Chief Justice Bauman found that besides Bountiful, polygamy was quite rare in Canada. There were a number of different interpretations of polygamy presented to the trial judge. The whole thing is a 200-page decision, but if you start at paragraph 905, you will see a number of interpretations of the law put forward.

In paragraph 1025, the court addresses the Attorney General of Canada's interpretation. What the court says is:

This leads to my substantive concerns with the position of the AG Canada. One is in respect of his view that ...[item (i) of paragraph 293] (1)(a)...[of the Criminal Code] should be interpreted as referring to non-residents of Canada who marry their spouses in a foreign country in accordance with its laws and who then emigrate to Canada. I respectfully disagree....

The court found that section 293 didn't apply to the very circumstances to which this law was seeking to apply section 293, which is of serious concern to us, because the backgrounders appear to be based on the interpretation of the law that was rejected by Chief Justice Bauman.

The backgrounders say that the changes would mean that a polygamous permanent resident or foreign national who is or will be physically present in Canada with even one of their polygamous spouses would be considered to be practising polygamy in Canada. That's not what the court found. This creates significant problems for us in advising our clients about the nature of this new inadmissibility.

What exactly does the government have in mind in terms of “practising polygamy”? It would appear not to be the interpretation of the Criminal Code given by the courts.

Individuals should be able to understand very clearly what conduct will place them at risk and the scope of that risk. Is the simple presence of two spouses on Canadian soil enough to be “practising polygamy”? Do they have to do something more? Do they need to speak to each other? Do they need to do anything polygamous?

It's unclear to us what “practising polygamy” is, because it's clearly not the clear definition that we have from the courts.

Finally, I would note that if this amendment is about protecting women in polygynous relationships, it is unclear how rendering such women inadmissible is of assistance to them or their children.

Thank you for your invitation. I would be happy to answer any questions you may have and to elaborate on my presentation.

[The Chair, Conservative, David Tilson]

I thank the two of you for your presentations.

Mr. Eglinski.

[Jim Eglinski, Conservative, Yellowhead, AB]

Thank you, Mr. Chair.

I'd like to thank all four witnesses for coming out this morning and speaking to us.

It's rather alarming, because we're trying to make things better for women in this country, that we don't seem to even understand in our own country, as you said, Peter.

I have a question to Arooj. Front-line workers stress the importance of training police officers. My background is in law enforcement, for a number of years. I believe it is important that officers of the law have the tools they need to deal with honour-based violence.

Do you believe that this bill will give front-line workers better tools to criminalize and even prevent honour-based violence?

[Arooj Shahida]

They will definitely take advantage of this bill. That's a good tool, a first step towards this area of honour killing, but they need training to know what the mindset is of this community and how they can deal with them, because there are very complicated details of their mindset. I have seen cases that reach to that extent, because there have been reports when they come across these families where this crime has not yet been committed, but there are circumstances, and they are not able to find out the real situation there. Sometimes they overlook that because of their family unit, a kind of the control of the family on those victims. They need that training to know this community's mindset first.

They must have this tool not to control, but to punish those criminals who are committing this crime. But I don't see this as being really helpful to preventing there being victims of this crime. For that, we need some special training not only for police officers and experts, but also for communities to change their mindset through education, through awareness, through communication, through their own community leaders, and especially from youth, who are born and raised in this country and who understand the value of an individual's rights and freedoms.

The generation who has been brought up in those countries and came here have their own mindset. They have not taken a first step towards to understanding what freedoms and rights mean. They don't know how to respect rights. They need to be educated, but through the youth. My area is to create basic awareness and education. I motivate them to question themselves, if they are living up to the standard of humanitarian values or if they are living up to the standard of Canadian rights and freedoms. They don't even understand if this question is valid.

[Jim Eglinski, Conservative, Yellowhead, AB]

Okay.

I'm going to throw at you a key scenario. A family takes their 12-year-old daughter outside of the country to get married, and they come back, and the daughter's not with them. How do we determine that? Do we rely on the public or the schools to feed us information? Do we need to make people aware in the schools, in the travel agencies, and in the airports that, if a family of five go out, and only four come back, a person is missing. Where is that fifth person?

Can you comment on this? Have you had any discussions on your show with those kind of ramifications? Who's going to let the government know? Is the community going to let us know that one is missing?

[Arooj Shahida]

The community has the same handicaps as the individual family. This is the worst hang-up, in that the community does not stand up for others. They are even afraid. It's a very complex mindset. They see that there is a crime and there are people who condemn this, but they don't want to take the initiative to go against those families who do these kinds of crimes. They fear for themselves.

In this area kids need to be educated about how to protect themselves and how to contact others. It is in their control. It should be so easy for them, without any fear, so they can trust anyone who can provide them with protection. That can be the school, or teachers, and enforcement. Even the social workers from the same community are not that helpful. When I talk to these youth groups I always tell them they should keep someone who is born and raised here who understands the real values of these freedoms and rights. When they're talking to kids they cannot take them into their confidence, that they can come out with the whole thing without any fear.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Shahida and Mr. Eglinski.

Madame Blanchette-Lamothe.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Thank you.

My thanks to the witnesses for being here with us today for this important study.

As I say at the beginning of every speech, I would like to stress that we all support the objective of this bill, which seeks to combat violence against women, forced marriages and forced child marriages. Everyone supports an objective like that. The debate is more on the approach to the issue and the measures we are equipping ourselves with to combat those situations.

My question is for Ms. Costom or Mr. Edelmann. I'll let you decide who is able to answer it.

Today, a witness talked about female genital mutilation. I know that a minister has already indicated on her website that Bill S-7 will provide the tools to counter that type of mutilation. Can you identify measures in this bill that will specifically provide tools to fight against that type of practice?

[Peter Edelmann]

There are two different situations.

The first one would be if it happened in Canada. In that case, that would clearly be a crime. There is no doubt that genital mutilation constitutes a crime in Canada.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

You are talking about the current legislation.

[Peter Edelmann]

That's aggravated assault. There is no doubt about that and I don't think we could deny that it is already illegal in Canada.

From what I can see, nothing in the bill amends the Immigration and Refugee Protection Act in terms of mutilation. The only question that could be asked has to do with the genital mutilation practised abroad. That could be the issue at hand. I am not aware of any countries where that is legal and it is not a crime. If it is a crime abroad, it could be a way to impose inadmissibility on someone under section 36.

For instance, right now, under the Immigration and Refugee Protection Act, there are provisions if we have evidence that someone participated in genital mutilation abroad. According to my information, no country has measures that would allow individuals to defend themselves under section 36.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

So Bill S-7 does not bring—

[Peter Edelmann]

I see nothing that is helping or changing the current legislation.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Thank you.

With regard to polygamy, you said that the definition was vague. If Bill S-7 is passed, immigration officers will have the power to decide in a more or less arbitrary fashion whether or not a person is practising polygamy and whether or not they are inadmissible to Canada. Is that your understanding of the issue as well? Will immigration officers actually have that power? Do you have any comments on this type of discretionary power that immigration officers would have?

[Peter Edelmann]

It's not that the power would be arbitrary or discretionary. The problem we see is that we don't know in advance what the interpretation will be. Based on the current interpretation in the briefing notes, the intention is different from the only interpretation made by the courts. The courts say that this is not the interpretation.

It is very important to understand what the reasons are. I recommend that you read Justice Bauman's decision. He makes a distinction between polygyny, polyandry and polyamory, which are three different things. That judge found that polygamy includes all those things. The intent of section 293 of the Criminal Code is not to target barbaric practices but rather to protect the institution of monogamy. That is a very different intent and that is why section 293 was found constitutional.

If the lawmakers start interpreting the Criminal Code provisions on polygamy differently, the situation in terms of the constitutionality of the procedures taking place right now in Bountiful, for instance, might change. That might not be provided for in Bill S-7. What is not clear for us is the conduct being targeted, because based on the current interpretation, the conduct targeted is not described by the Criminal Code.