Citizenship and Immigration Committee on May 12th, 2015

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

Thank you.

I agree with eliminating this clause, Mr. Chair, for the reasons mentioned. We were here and we heard the witnesses speak. If I'm not mistaken, everyone who testified and who were experts in law and the Criminal Code raised sincere and serious concerns about this clause.

Given their profession, these people are very familiar with the Criminal Code. They see how it is used and applied. Yet they tell us that this clause, in addition to being useless because an honour killing has never been excused by reason of provocation, is dangerous because it eliminates the discretionary power of judges. It also eliminates the possibility of invoking the notion of provocation in other cases where it might be relevant.

When we have testimonies that are as clear, strong and unanimous in committee, ignoring them becomes an act of total stubbornness. They need to be considered. If the government is truly interested, it could remove the clause, do better work on this, gather some data, some facts about the usefulness of such a measure and rework it. Regardless, we cannot move ahead so quickly when so many experts have expressed their disagreement and concern.

This clause may be one of the most troubling points of Bill S-7, which is why I support the amendment and oppose clause 7.

I hope the government will take into account the concerns expressed by the witnesses.

[The Chair, Conservative, David Tilson]

Mr. Menegakis.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Mr. Chair, the government will not be supporting this amendment. This amendment would leave the defence of provocation intact and would therefore permit persons accused of murdering their spouses or other family members who provoke them through lawful words or actions to continue to raise the defence.

In some cases or in some types of circumstances, depending on the evidence, the defence could be successful. In many cases, even if the defence is ultimately unsuccessful litigating whether and how the defence applies in these cases, it is likely to be costly and time consuming for all parties.

The amendment therefore runs counter to the objectives of Bill S-7, which is to modify the law so that it clearly excludes provocation on the basis of law conduct.

Criticisms of the defence of provocation have been made in all jurisdictions with a legal tradition similar to Canada's that have the defence. In the past decade, such jurisdictions have either abolished or limited their provocation defences. Three Australian states and New Zealand have abolished the provocation defence entirely.

In 2014 the Australian state of New South Wales passed legislation similar to Bill S-7 that limits the provocation defence to conduct by the victim that amounts to a relatively serious criminal offence. Three Australian states and the United Kingdom have limited the provocation defence in other ways.

The reforms proposed in Bill S-7 would bring Canada's law of provocation into line with those of similar countries. We are therefore opposing the proposed amendment.

[The Chair, Conservative, David Tilson]

We will call the vote on PV-5.

(Amendment negatived [See Minutes of Proceedings])

We have a further proposed amendment to clause 7, which is called LIB-3.

Mr. McCallum.

[John McCallum, Liberal, Markham—Unionville, ON]

It was obvious at our first committee meeting that the minister didn't really understand this provision regarding provocation. Limiting the provoking act under this partial defence to only criminal offences that carry a maximum sentence of at least five years in prison doesn't achieve the goal that the government is claiming that it is achieving.

It took only a little bit of research by my office to figure this out, that many non-violent property offences are included in this new definition. It does not limit provocation to serious violent offences as the minister claimed. In fact, he had to be corrected on this by his own officials.

Our amendment would clarify that the provoking act would need to be a criminal offence or some other form of discrimination, that it would deprive a normal person of control. This is an important change as it would serve to ensure that those who face extreme and continuing discrimination may avail themselves of the defence, for example, a Jewish person who encounters incredible anti-Semitism or a gay person who is subjected to very homophobic remarks.

That is the rationale for our proposed amendment.

[The Chair, Conservative, David Tilson]

Mr. Menegakis.

[Costas Menegakis, Conservative, Richmond Hill, ON]

The government will not be supporting this amendment. It is not clear whether the amendment means that conduct must be discrimination that is contrary to the Canadian Human Rights Act, for example, specific practices described in the CHRA relative to the workplace and the marketplace, or whether discrimination is used in a more general sense, which is not defined in law, and only the grounds of discrimination in the CHRA are invoked. However how it is interpreted, it would broaden the existing defence of provocation for the list of prohibited grounds in the CHRA which are tailored to discrimination in the workplace and marketplace, and are inappropriate to the criminal context.

No other common law jurisdictions have amended the provocation laws to include discrimination. For instance, New Zealand and the Australian states of Victoria, Tasmania, and Western Australia have abolished provocation. New South Wales renamed it defence of extreme provocation and now limits it to criminal offences punishable by at least five years in prison. The United Kingdom abolished provocation and replaced it with a defence of loss of control that is available where the accused either had a fear of serious violence from the victim, or where the victim did or said something of an extremely grave nature that gave the accused a justifiable sense of being seriously wronged.

The government does not support the amendment for those reasons, among others.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Menegakis.

Madam Blanchette-Lamothe.

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

Thank you, Mr. Chair.

I simply wanted to say that this amendment doesn't go far enough, in my opinion. For the reasons I mentioned earlier, clause 7 must be completely eliminated. That's why I will vote against it and why I oppose clause 7.

[The Chair, Conservative, David Tilson]

We will now vote on LIB-3.

(Amendment negatived [See Minutes of Proceedings])

(Clauses 7 and 8 agreed to)

(On clause 9)

There is a proposed amendment by Ms. May, and it's PV-6.

Ms. May, you have the floor.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

People don't always know what “PV” stands for. It stands for “Parti vert”.

This again is an amendment suggested by the evidence of UNICEF. The amendment is to clause 9 of the bill, but changes the act in proposed sections 293.1 and 293.2 and expands the scope of offence and criminality to those who participate, celebrate, or aid in any way at this event. The concern of UNICEF, of course, and I'll just quote from their brief:

If a child can be forced into marriage, they can also be forced into celebrating, aiding, or participating in a forced marriage. We recommend that children and youth be exempt from the measures set out in the proposed new sections 293.1 and 293.2 of the Criminal Code, and the proposed amendments to subsection 14(2) of the Youth Criminal Justice Act.

What my two-part amendment does is exactly as UNICEF suggested. I've inserted a minimum age into proposed section 293.1 where there wasn't a minimum age before, and I've changed the minimum age in proposed section 293.2 from 16 years to 18 years in an attempt to protect children from being inadvertently scooped up in criminality by participating in a larger family event for which one cannot imagine that they should have any criminal consequences.

Protecting children is the goal of my last amendment.

[The Chair, Conservative, David Tilson]

Thank you.

Madam Blanchette-Lamothe.

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

Thank you.

Although I agree with my colleague that children should not be charged and criminalized for acts like the ones set out in clause 9, this amendment does not solve the problem that this clause raises. I will speak to this clause a little later. That's all I wanted to say about this amendment. I will oppose it because it does not resolve the main issue with clause 9.

[The Chair, Conservative, David Tilson]

Mr. Menegakis.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Mr. Chair, the government will not be supporting the amendment.

The Criminal Code sets out offences that have general application and proclaim standards of socially unacceptable behaviour. It is important to underline that youth under age 18 who are accused of a criminal offence are subject to a separate regime in relation to charging, criminal procedures, sentencing, rehabilitation, and reintegration pursuant to the Youth Criminal Justice Act, YCJA. It recognizes that youth must be held accountable but in a way that takes into account their greater dependency, reduced level of maturity, and the principle that youth are presumed to be less morally blameworthy than adults.

For instance, the YCJA requires police officers to consider using alternatives to charging or extrajudicial measures in all cases of youth offending. If extrajudicial measures are deemed to be inappropriate, charges may be laid. Whether charges proceed to trial will be based on the prosecutor's assessment of the public interest and whether there is a reasonable prospect of conviction in each individual case.

Studies on forced marriage indicate that multiple family members can take part in the use of force for the purpose of compelling a person to marry against their will. Siblings may be tasked by parents with a job of enforcing or assisting with the enforcement of a marriage. Excluding youth from the ambit of these offences might result in parents' increased reliance on their minor children to force another child into an unwanted marriage, and may fail to hold accountable individuals whose conduct is blameworthy and directly contributed to the victimization of another.

Similarly, providing immunity for anyone under age 18 who marries another person knowing that the other person is marrying against their will or is under the age of 16 fails to take into consideration that the social harm and impact of the victim is the same regardless of whether the person they are forced to marry is above or below the age of 18.

Finally, Mr. Chair, it would be inconsistent for the law to hold these youth accountable for general offences committed in the course of forcing someone to marry, such as assault and forcible confinement, while exempting them from the specific offence of active participation in the forced marriage ceremony.

We are opposed to the amendment.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, David Tilson]

Madam Blanchette-Lamothe.

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

Thank you.

Before we vote on clause 9, I would like to speak to it, Mr. Chair.

Another aspect of Bill S-7 has given rise to controversy. Many witnesses said they were against the clause. First responders who deal with victims expressed their concerns. They fear that clause 9 will marginalize and further isolate victims. It's a risk.

Throughout the study, everyone agreed on the intent of the bill, but the intent is not enough. We need to look at the repercussions that each measure of a bill may have. If the true intent is to protect women and children, we have to vote against this clause and do a more in-depth study of the repercussions it may have before the bill is implemented.

I am not saying that I'm against criminalization. Of course, when a crime or an unacceptable act like a forced marriage occurs, a sentence must be imposed and punishment must occur. We need to demonstrate that such an act is unacceptable.

As for forced marriage, it is clear that one of the biggest problems with this is the secrecy surrounding it. Very few victims speak out and go through the legal system. What could we put in place to ensure that victims will be protected and obtain justice in court? That is not the outcome of clause 9 as worded.

If it were a clause that did not have a major impact, I would not oppose it. A number of witnesses said that the Criminal Code already contains all the provisions required to incarcerate individuals who commit an offence related to forced marriage. However, not only is clause 9 not without consequences, but it could very likely further marginalize the victims. These questions need to be raised. There is cause to discuss this again in greater detail.

We heard from a witness from the United Kingdom who had experience with these kinds of measures and legislation that had been implemented a few years ago. She told us that not only did these measure not have any impact on the number of denunciations or on the criminalization process of individuals committing an offence related to forced marriage, but there was also a drop in the number of individuals who denounced forced marriage.

What's even more important is that other countries have different measures than the ones set out in clause 9. The victims of these other countries have the choice between a civil path and a criminal path. Giving them this power provides them with more confidence to make a denunciation. The purpose is not necessarily to incarcerate the family and friends, but to protect the victim. We must always keep that in mind when studying a bill like this. It's not the intent that counts, but the potential impact on the victims. Will this clause make it possible to fight against forced marriages? Perhaps, but it will very likely harm the victims. I hope that the government has heard all these testimonies, that it is willing to come back to this debate later, and do a consultation and a more extensive study.

Such a bill must not be aimed at simply pleasing a voter base. The goal is not to show that we are concerned and that we are doing something about it. We need to be serious, which is not the case here. The only studies and consultations that took place were in the Senate committee and here. The experts shared their concerns with us. If we want this consultation to be of some use, we need to listen to these experts and do other, more extensive studies before moving forward with this bill.

I hope the message has been understood and that this study will serve a purpose. If this study were to serve a single purpose, it should be to ensure that this bill will not harm victims further. I am sure that this is not the government's goal. I am convinced that the government party does not want to marginalize, stigmatize or make victims more vulnerable.

That is not what I'm saying, but I hope that they have listened and have seriously considered the concerns that have been raised. This might be the right approach, but it might not and perhaps it will be harmful. So if we have even the shadow of a doubt that a measure like this might be harmful, we need to study it further.

[The Chair, Conservative, David Tilson]

We are having a debate on clause 9.

Mr. Menegakis.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Mr. Chair, of course, I beg to differ with my colleague on a number of things she mentioned, and I'll get to clause 9 in a moment. The statement that the government does not take matters seriously and did not hold wide consultations is false. I stated earlier that the minister had consultations across the country, including discussions with provinces. It's false to say that the only consultation that was done was by this committee. Comments like that certainly serve nothing but to inflame partisan positions.

This clause, Mr. Chair, amends the Criminal Code to introduce two new offences of celebrating, aiding, or participating in a forced marriage ceremony and celebrating, aiding, or participating in a marriage ceremony of a person under the age of 16. These new offences, sections 293.1 and 293.2, parallel the existing offence related to participating in a polygamous marriage ceremony at paragraph 293(1)(b) of the Criminal Code and would have the same maximum penalty of five years' imprisonment.

These new offences denounce behaviour that actively provides social legitimacy to a harmful practice that creates an unwanted and/or harmful legal bond within which sexual assault and other offences are expected to take place. The offence would not capture attendees at a ceremony unless they engage in some action intended to help the marriage take place. As the courts have made clear, criminal liability cannot be based on passive presence at the scene of a crime.

Obviously, we're very much in support of this clause, and obviously we'll be voting in favour of it.

[The Chair, Conservative, David Tilson]

Ms. Mathyssen.

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

Mr. Chair, I would support deletion of this clause, because I think in so many ways it could easily do far more harm than good. There's a punitive mentality at work here. If we are indeed looking to protect women and children, why is there this incredible sense to punish, punish, punish? Let's step back and look at it dispassionately. First of all, it says “everyone” in these clauses. Everyone is guilty. As Madam Blanchette-Lamothe pointed out, it fails to take into account that women and children in this circumstance are vulnerable. They're part of something that may make them feel uneasy.

Now instead of the government, the law, the entity that's supposed to protect them from this, is saying “we're going to get you for this”. It makes no sense to me, particularly since the Criminal Code already covers situations with regard to the prevention of kidnapping, forceable confinement, threats, assault, sexual assault. It's there in the law already. I do not see that this adds anything, except to make the vulnerable more vulnerable. I think it should be given consideration in that light.

[The Chair, Conservative, David Tilson]

We'll vote on clause 9.

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

I would like a recorded vote, please.

(Clause 9 agreed to [See Minutes of Proceedings])

(Clauses 10 to 14 inclusive agreed to)

(On clause 15)

[The Chair, Conservative, David Tilson]

Madam Blanchette-Lamothe.

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

I simply wanted to say that I oppose clause 16 because of the undesired and unexpected consequences, once again—