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.