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.