November 5, 2014 — Ottawa — Today, Canada’s Citizenship and Immigration Minister Chris Alexander announced the tabling of legislation in the Senate, Bill S-7, that will strengthen Canadian laws to prevent barbaric cultural practices from happening on Canadian soil.
Zero Tolerance for Barbaric Cultural Practices Act: An Overview
The Zero Tolerance for Barbaric Cultural Practices Act demonstrates that Canada’s openness and generosity does not extend to early and forced marriage, polygamy or other types of barbaric cultural practices. Canada will not tolerate any type of violence against women or girls, including spousal abuse, violence in the name of so-called “honour”, or other, mostly gender-based violence. Those found guilty of these crimes are severely punished under Canada’s criminal laws.
To deliver on the Government’s commitment to standing up for victims of violence and abuse and to send a strong message to those in Canada—and those wishing to come to Canada—that such practices will not be tolerated on Canadian soil, the Government is proposing to amend five federal statutes:
Immigration and Refugee Protection Act
Address polygamy through the creation of a new polygamy-specific inadmissibility provision in the Immigration and Refugee Protection Act, meaning:
- temporary residents and permanent residents who practise polygamy in Canada could be found inadmissible on that basis alone, without the need for a criminal conviction; and
- if found to be inadmissible, the person could then be subject to removal.
Civil Marriage Act
Make amendments to the Civil Marriage Act to legislate across Canada two existing legal requirements for a valid marriage:
- the requirement for free and enlightened consent (proposed section 2.1); and
- the requirement for ending an existing marriage prior to entering another (proposed section 2.3).
These legal requirements currently exist in federal legislation that applies in the Province of Quebec only (sections 5 and 7 of the Federal Law–Civil Law Harmonization Act, No. 1) and in common law (court decisions) for residents of other provinces and territories.
The bill would also establish a new national minimum age for marriage of 16, below which no marriage could be contracted (proposed section 2.2). This legal requirement currently exists only in federal legislation that applies in the Province of Quebec (section 6 of the Federal Law–Civil Law Harmonization Act, No. 1). The common law (court decisions) applying to residents of other provinces and territories is sometimes interpreted as setting a minimum age of 14 for boys and 12 for girls, and historically sometimes as low as age 7. This proposed amendment would provide equal protection to all Canadian children by setting the minimum age to age 16 across Canada.
Additional legal protections for children between the new minimum age for marriage and the age of majority, set by the province or territory of residence at 18 or 19 years of age, are found in provincial and territorial marriage laws. These laws currently require parental consent (and in some instances also the consent of a judge) to ensure that the child fully understands the legal consequences of marriage in those exceptional circumstances where a child would be mature enough to marry. Canada’s Minister of Justice has asked his provincial and territorial counterparts to consider making complementary amendments to their marriage laws to ensure that children are uniformly protected by requiring a judge to make the proper inquiries, in addition to parental consent, in the case of any marriage involving a child between the age of 16 and the age of majority.
Amend the Criminal Code to provide additional protections building on the proposed amendments to the Civil Marriage Act to prevent forced or underage marriages. The proposed amendments would:
- amend the existing offence for a legally-authorized officiant who knowingly solemnizes a marriage contrary to provincial law (section 295) to clarify that this also includes a marriage that is contrary to federal law, including a forced marriage or a marriage under the age of 16—this offence will be punishable by up to two years in prison;
- create a new offence prohibiting the active and knowing participation in a forced marriage ceremony by any person, including parents or other family members of the person being forced to marry, or the performance of a forced marriage ceremony, whether or not the person is legally authorized to solemnize a marriage (proposed section 293.1)—this offence will be punishable by a maximum of five years in prison;
- create a new offence prohibiting the active and knowing participation in a marriage ceremony involving a person under the age of 16, by any person, including parents or other family members of the person who is underage, or the performance of an underage marriage ceremony, whether or not the person is legally authorized to solemnize a marriage (proposed section 293.2)—this offence will be punishable by a maximum of five years in prison;
- extend the existing offence of removing a child from Canada for the purpose of having certain offences committed abroad to include the removal of a child for the purpose of a forced marriage or a marriage under the age of 16 outside of Canada (proposed paragraph 273.3(1)(d))—this offence will be punishable by a maximum of five years in prison; and
- introduce a new peace bond that gives the court power to impose conditions on a person where there are reasonable grounds to fear that a forced marriage or a marriage under the age of 16 will otherwise occur (proposed section 810.02).
The Bill would also amend the Criminal Code to address concerns that the defence of provocation (section 232) has been raised in several so-called “honour” killing cases in Canada. These cases involved accused persons who killed their wife, sister or sister’s fiancé and alleged that the killing was motivated by their perception that the victims had brought “dishonour” to them or their family through their conduct or choices, taking into account their culture’s views about appropriate gender roles and behaviour.
The defence of provocation currently allows a person found to have committed murder (which carries a mandatory sentence of life in prison and minimum parole ineligibility periods) to seek a conviction of manslaughter instead (with no minimum sentence unless a firearm is used) by arguing that the victim’s conduct provoked them to lose self-control and kill.
Currently, any conduct by the victim—including insults and other forms of offensive behaviour that are lawful—can potentially qualify as provocation if it is found to be sufficient to cause an ordinary person to lose self-control, the accused was not expecting it and the killing was sudden. The proposed amendment would limit the defence of provocation so that lawful conduct by the victim that might be perceived by the accused as an insult, or offend that person or their sense of family “honour” or reputation, cannot be used to reduce murder to manslaughter. Only conduct by the victim that amounts to a relatively serious criminal offence (i.e. an offence under the Criminal Code punishably by at least 5 years in prison) could be argued to be “provocation” for the purposes of the defence.
Consequential amendments resulting from the above-mentioned changes will also be made to the Prisons and Reformatories Act and the Youth Criminal Justice Act to include references to the new peace bond.