Proceedings of the Standing Senate Committee on
Human Rights

Issue 14 - Evidence - December 4, 2014


OTTAWA, Thursday, December 4, 2014

The Standing Senate Committee on Human Rights, to which was referred Bill S-7, An Act to amend the Immigration Refugee and Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts, met this day at 8:01 a.m. to give consideration to the bill.

Senator Mobina S. B. Jaffer (Chair) in the chair.

[English]

The Chair: Honourable senators, welcome to the twenty-third meeting of the Second Session of the Forty-first Parliament of the Standing Senate Committee on Human Rights.

[Translation]

We have a mandate from the Senate to study human rights issues in Canada and around the world.

My name is Mobina Jaffer, and I am the chair of this committee.

[English]

Before I continue, I would like my colleagues to introduce themselves, and I will start with the deputy chair.

Senator Ataullahjan: Senator Salma Ataullahjan, representing Ontario.

Senator Eaton: Nicky Eaton from Ontario.

Senator Nancy Ruth: Nancy Ruth from Ontario.

Senator Tannas: Scott Tannas from Alberta.

Senator Ngo: Senator Ngo from Ontario.

The Chair: We are here to begin our hearings on Bill S-7, An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts. This bill makes polygamy a new ground for refusing admission or the right to stay in Canada, provides 16 years to be the minimum age for marriage, limits the use of provocation as a criminal defence and creates new offences and peace bonds related to forced and underage marriage.

Today, we are very privileged to have Minister Chris Alexander before us. Minister, I think this is the first time you have appeared before our committee, and we welcome you and your officials and the Justice officials. I understand you have a short presentation to make. Welcome.

[Translation]

Hon. Chris Alexander, P.C., M.P., Minister of Citizenship and Immigration: Thank you, senator. I am pleased to be here today with so many distinguished colleagues and friends. I am accompanied by one of my colleagues from the Department of Citizenship and Immigration, and by colleagues from the Department of Justice who have extensive knowledge on this matter.

[English]

I'm delighted to appear on Bill S-7, which will help to ensure that no young girl or woman in Canada becomes a victim of early or forced marriage, polygamy, so-called honour-based violence or any other form of barbaric cultural practice.

We wish that we could say that in Canada of 2014 these were no longer challenges for us domestically. As we know from Bountiful, British Columbia, from communities across the country and from the daily fact of violence against women, they remain challenges. We remain duty bound to act against them, as our Prime Minister recently did in Dakar with new funding and new initiatives to support international efforts to end early and forced marriage and as we are all doing in the 16 Days of Activism Against Gender Violence in the run-up to December 6, an important anniversary and a sobering one in every respect.

We were doing it last night, in the House of Commons, with Member of Parliament Stella Ambler leading a new round of debate on her private member's motion to end proxy, fax and phone marriages, which are sometimes tools of those forcing women, and indeed boys sometimes, into marriages against their will.

As you know, the measures in Bill S-7 would amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code to provide more protection and support for vulnerable individuals, particularly women and girls.

We're taking a strong stance against these practices because they represent violations of basic human rights. In the most recent Speech from the Throne, which you will all recall, we recognized that millions of women and girls worldwide continue to be brutalized by violence, including through the inhumane practice of early and forced marriage. A number was cited in Dakar, and it runs, just in recent decades, into the hundreds of millions of women and girls who have been victims of this practice.

Our government committed to help ensure that barbaric cultural practices do not occur on Canadian soil. Bill S-7 follows up on that commitment. It sends a clear message to anyone coming to Canada and to those who are already part of Canadian society — and let me emphasize that these can be communities whose members have been part of Canadian society for generations — that such practices are incompatible with Canadian values and won't be tolerated.

The amendments in this bill would strengthen the provisions of the three acts I mentioned to add further protections. These amendments would improve protection and support for vulnerable individuals, especially women and girls, in the following ways: They would render permanent and temporary residents inadmissible if they practice polygamy in Canada. They would strengthen Canadian marriage laws by establishing a new national minimum age for marriage of 16 years old and by codifying existing legal requirements for free and enlightened consent for marriage and for ending an existing marriage prior to entering another. They would criminalize certain conduct related to underage and forced marriage ceremonies, including the act of removing a child from Canada for the purpose of such marriage ceremonies. They would help to protect potential victims of underage or forced marriages by creating a new and specific preventive court-ordered peace bond, where there are grounds to fear that someone would commit an offence in this area. And they would ensure that the defence of provocation would not apply in so-called honour killings and many spousal homicides.

Allow me to elaborate on some of these important measures. Madam Chair, polygamy is an affront to Canadian values and, as such, has been illegal in this country since 1890. While it is against the law in Canada to practice polygamy or to enter into a polygamous union, that's not the case in every country of the world, as we all know. To increase our ability to prevent polygamy from occurring on Canadian soil and to make sure that the immigration system is not facilitating this practice in any way, Bill S-7 would create a new ground for inadmissibility for practising polygamy in the Immigration and Refugee Protection Act. It would provide immigration officers with the tools they need to render both temporary and permanent residents inadmissible for practising polygamy. The new inadmissibility would mean that those entering on a temporary basis who are in polygamous marriages abroad can enter only on their own, without any of their wives. It also means that permanent residents found to be in polygamous marriage will be removed on that basis alone. We would no longer need a criminal conviction or a finding of misrepresentation in order to begin deportation proceedings.

On that front, while there is a direct relationship to immigration flows that these measures would have, they are also directly pertinent to communities such as Bountiful, British Columbia, where the recruitment of girls, new wives, from nearby in the United States has been a common practice. Our powers as an immigration service to prevent that kind of smuggling of girls and young women for the purposes of polygamist marriage — not declared to us, obviously — have been very limited to this time.

Madam Chair, measures in Bill S-7 would also amend the Civil Marriage Act in order to address the problem of early and forced marriages. In Canada there is no national minimum age for marriage. I was surprised to hear that.

Specific federal laws, which apply only in Quebec, set the minimum age at 16 years old. In other parts of Canada, the common law applies. There is some uncertainty about the common-law minimum age, which is sometimes interpreted as setting a minimum of 12 for girls and 14 for boys, although in some instances and historically, going all the way back to medieval common-law, it was sometimes as low as 7 years old. Setting a national minimum age of 16 years old for marriage would make it clear that underage marriage is unacceptable in Canada and will not be tolerated.

Other amendments to the Civil Marriage Act proposed in Bill S-7 would codify the requirement that those getting married must give their free and enlightened consent to marry each other and the requirement for the dissolution of any previous marriage.

Building on the proposed amendments to the Civil Marriage Act, Bill S-7 also contains measures that would amend the Criminal Code to help prevent forced or underage marriage. These measures would criminalize knowingly officiating at an underage or forced marriage, knowingly and actively participating in a wedding ceremony in which one party is marrying another against his or her will or is under 16 years old, and removing a minor from Canada for a forced or underage marriage.

Other proposed amendments would create a new peace bond to give courts the power to impose conditions on an individual where there are reasonable grounds to fear that a forced marriage or a marriage under the age of 16 will otherwise occur. Such a peace bond could be used to prevent an underage or forced marriage by requiring the surrender of a passport, as well as preventing a child from being taken out of Canada.

This is an important option for a young girl, for example, that wants to stop her family from taking her out of the country for a forced marriage, but does not want to press charges on her family members.

Madam Chair, measures in the bill would also amend the Criminal Code to address so-called honour killings. This so-called honour-based violence is usually perpetrated against family members, typically women and girls who are perceived to have brought shame or dishonour to the family.

Let's keep in mind that given the persistently large number of murders in Canada that are committed by people who know the victims, and in many cases who are relatives of the victims, this whole dimension of honour, the dynamic of personal relationships between perpetrator and victim is very important. Honour killings are usually premeditated and committed with some degree of approval and sometimes participation of family or community members.

However, in some cases they may also allege to be spontaneous killings in response to behaviour by the victim that is perceived to be disrespectful, insulting or harmful to a family's reputation. Under the Criminal Code, anyone charged with and found to have actually committed murder can raise the defence of provocation in seeking a reduction to the lesser charge of manslaughter.

In other words, the accused can argue that their victim's conduct in some way provoked them into a heat of passion that brought them to kill while in that state. Yes, disrespect and defiance could lead to a defence of provocation in a murder case, which could potentially lead to a lesser conviction.

A conviction for manslaughter instead of murder carries greatly reduced stigmatization and, more importantly, wide latitude for judicial discretion in sentencing. Manslaughter carries a maximum of life in prison with no minimum sentence unless a firearm is used, whereas murder carries a mandatory life sentence with ineligibility to apply for parole for at least 10 years.

This defence has been raised in several so-called honour killing cases in Canada. Accused murderers have claimed that real or perceived marital infidelity, disrespect, defiance or insulting behaviour on the part of the victims toward their spouse, sibling or parent provoked the killing. As a society, we need to send a clear signal that this kind of reasoning and these kinds of acts are unacceptable and will result in a severe penalty.

Measures in Bill S-7 would amend the Criminal Code so that legal conduct by the victim cannot be legally considered as provocation.

Bill S-7 would strengthen our laws to protect Canadians and newcomers to Canada from barbaric cultural practices. We are a welcoming country for hundreds of thousands of new immigrants each year. The vast majority of these newcomers enrich our country with their ideas, energy and cultures. They also rapidly learn and welcome the opportunity to live under our laws and within our laws.

For the few that try to advance barbaric practices that perpetuate violence, we must be unequivocal. The passage of Bill S-7 into law would send a strong message to those in Canada and those who wish to come to this country that we will not tolerate cultural practices in Canada that deprive individuals of their human rights. We will not tolerate those who would claim their cultural practices as an excuse for committing barbaric acts against women and girls, continuing violence against women. These practices will not be tolerated on Canadian soil.

I am delighted to give an overview of Bill S-7 and the measures it contains, and I am open to your questions.

The Chair: Thank you for your remarks. I know that most members have questions for you. May I please remind the members that the minister is going to be with us for the first hour, so I suggest all the questions should be to the minister. The officials will be with us for the second hour. So all members are able to ask the minister questions, and then we would have an opportunity to ask officials from Justice and Immigration to answer our questions.

Minister, I want to clarify something. From what I understand in this bill, there are four things: inadmissibility to Canada on reasons of polygamist marriage, age, forced marriage, and provocation. Your department is just dealing with the issue of polygamy on a daily basis, but you are the lead minister on this bill; is that correct? Do I have this correct?

Mr. Alexander: It generally is a team effort. The measures here that involve the Criminal Code are extensive, so my colleague the Minister of Justice is centrally involved. He has a lot of legislation under him at any given time, so this fits with that overall agenda. The Minister of Labour and Minister of Status of Women obviously was essentially involved in the consultations that led to this outcome, as were the Minister of Health and the Minister of Foreign Affairs because of Canada's international efforts to lead the charge against early and forced marriage.

The Chair: You explained it a little bit in your remarks, but why would you have a title like ''Zero Tolerance for Barbaric Cultural Practices Act''?

Mr. Alexander: Because we consider violence against women barbaric.

The Chair: We will go on to the vice-chair of the committee, Senator Ataullahjan.

Senator Ataullahjan: Minister Alexander, thank you for being here. Just talking about this bill, there have been claims that this bill is targeting a certain community or ethnicity. Is that the case? Did you hold any consultations on this bill, and what did you hear from stakeholders?

Mr. Alexander: It targets a very specific group — the group of those individuals engaged in violence against women, engaged in forcing people against their will into marriage, engaged in polygamous relationships, which are disguised in our immigration programs and elsewhere as something else, as family relationships, as family reunification — I'm bringing my sister or cousin. It is directed against those who think that there is some excuse, based on family honour, for committing any kind of violence, not just murder, in the home.

These are all practices that I think the vast majority of Canadians consider unacceptable, indeed reprehensible. That's why we are directing this legislation against persons who engage in them, and, yes, some of these people are newcomers to Canada. A very large number, potentially, are Canadians of long standing who have been here for generations. We all know that the most famous community of polygamists in Canada is in Bountiful, British Columbia. But there are cases of it, domestic and immigration-related, across the board, unfortunately. It is not on a large scale, but on a large enough scale to be of concern.

We did have consultations with a very large number of stakeholders. I had the opportunity in Vancouver, in Winnipeg, in Toronto and in Montreal to hear mostly from women and women's groups. Some were immigrant groups, some were domestic advocacy groups, or advocacy groups directed towards domestic justice and criminal issues, and the response was very good.

There were questions about titles and terminology, but I think on these issues when it comes right down to it my sense from our stakeholders and across the board was that there's very little room for ambiguity. We need to send a very clear message about these practices. What Marc Lepine did on December 6 was barbaric. What happens all too often behind closed doors in domestic settings to women and girls, the violence that takes place that is not addressed by the criminal justice system, is barbaric, and similarly with the measures that we're setting out to address in this legislation.

Senator Ataullahjan: Once the bill is passed and a man or a woman in a polygamous relationship has entered Canada alone as a temporary or permanent resident, what is to stop them from remarrying in Canada?

Mr. Alexander: Good question. If they're here with legally constituted polygamist relationships in their home country, they don't declare those and then they remarry someone here, they're breaking the law. To some extent under current law, certainly to a greater extent under these amendments, we are all required to dissolve any previous marriage before being married.

Would that be detected in Canada? It depends on the circumstances. What I do hear from experts and community members from many parts of Canada is that there are a relatively large number of newcomers in this country who manage to arrive with more than one wife, misrepresenting themselves under the immigration system, misrepresenting those wives as sisters or other family members, but who live more or less openly now in polygamist relationships. It would have been very difficult, if not impossible, to address that under IRPA as it now stands. Under the new measures, that kind of behaviour will be detected and those persons, if they're permanent residents or temporary residents, will be removed.

Senator Eaton: You referred to Bountiful. How will this bill stop Canadian citizens going across the border and coming back with a couple of 16-year-olds? Will Canada Border Services Agency have the tools to stop them? How will this bill affect Bountiful?

Mr. Alexander: I think the penalties and accountability for behaviour of that type, for involvement in bringing underage people, girls, to Canada to be involved in polygamous relationships would be much higher. The training and preparation on the part of CBSA in consequence of this bill would be strengthened. This would also build on a law enforcement record that is starting to be somewhat firmer than it was a few years ago.

Remember, the first arrests in Bountiful happened only in recent years, even though polygamy has been on the books in Canada as a criminal practice for well over a century. We're giving law enforcement more tools to act.

Senator Eaton: Are they going to be trained? A lot of the young women, I'm sure, are part of almost a cult, aren't they? It's saying what you're doing is illegal but it's also separating them from this only world they've known.

Mr. Alexander: Yes, and I don't think any of us would call it consent, but there may be complicity because of the phenomenon you're talking about. Read the decisions of the judges who have ruled on cases from Bountiful in recent years. They all say that polygamy in Bountiful and elsewhere leads to very high rates of domestic violence, leads to very high rates of mental illness, leads to hardship and dependence in a whole variety of forms. And I think there is concern in that community and around that community about all of those negative impacts of polygamy, which everyone is anxious to see addressed.

Senator Eaton: Will you be able to go right into this community now once we've passed Bill S-7 and determine who is polygamist and charge them?

Mr. Alexander: Well, polygamy is a crime today and there have been some arrests. I'm not sure about convictions. I will leave it to my colleagues. There are no convictions yet in the case of Bountiful, but those are issues for law enforcement, and I'm not going to predict what they will be able to do with these new tools, but they will have new tools, particularly to prevent the arrival of new wives entering polygamist relationships from similar communities, to be perfectly honest, in Utah and elsewhere across the border, because there is a cross-border aspect to Bountiful's life.

Senator Eaton: With this Bill S-7, barbaric practices, are we setting the bar amongst countries with heavy immigration? I'm talking about England, France, Australia, perhaps New Zealand; do they have the same kind of law protecting women as we're trying to do here?

Mr. Alexander: They do. The U.K. has tightened their laws and regulations preventing forced marriage. They have a forced marriage unit that is very advanced. They've taken a lot of action on this front. I'm not aware of any country putting in place quite the measures we are for polygamy by making it a form of inadmissibility. Our Immigration and Refugee Protection Act is unique in the world. Other countries don't have exactly the same tools that we do, but we are strengthening the bar to admission to Canada for those who are polygamists very significantly.

I think it goes in the same general direction as what we have seen in European peer countries and other immigration countries. There is a concern about honour-based killing in immigration, much beyond Canada's borders. There is a concern about forced and early marriage and human trafficking.

Unfortunately, modern-day slavery and human trafficking is happening on a larger scale than any of us dared to suspect it might even 10 or 20 years ago. This is the dark side of globalization. When one sees videos readily available from Boko Haram and ISIL, the Taliban and other groups that are just horrifically bent on the degradation of women and the widespread practice of violence against women, one can see why these networks that force women into marriage, force women to cross borders against their will, force women into polygamist relationships are present in all of our countries because of the unprecedented connections we have with each other.

Senator Eggleton: You used the word ''barbaric'' a few minutes ago with respect to violence against women. I don't think anybody here would disagree, whether we use the word ''barbaric'' or not, that it's absolutely abhorrent, that it's absolutely something that is not acceptable in Canada.

By using the word ''barbaric,'' are you, by extension, then calling the communities where some of these practices that we've been talking about here today have existed, are you in effect calling those communities within Canada barbarians?

Mr. Alexander: Which communities do you mean, Senator Eggleton?

Senator Eggleton: The communities where some of this practice of forced marriage or honour killing. All abhorrent as they are, that does exist in some communities, perhaps to a very small extent. Nevertheless, are you calling those people barbarians?

Mr. Alexander: I think I was very clear just a few moments ago in saying the community at which this bill is addressed is the community of those who perpetrate violence against women. It knows no bounds of culture, nationality or language. Some are immigrants, newcomers to Canada; some are Canadians of long standing. We have a challenge of missing and murdered Aboriginal women in this country. We have a challenge of cyberbullying in this country.

Senator Eggleton: If the government would do something more about it, yes, that would be good, but, aside from the people who perpetrate these specific acts, are you generally casting these communities as barbarians?

Mr. Alexander: You still haven't told me what community you're talking about. I'm talking about one community.

Senator Eggleton: I just described it to you a few minutes ago, and I think you know.

Mr. Alexander: Your description actually lacked any content.

Senator Eggleton: I afraid I'm asking the questions, and you're giving the answers. That's the way this goes.

Mr. Alexander: I have not asked you a single question. I gave you the answer.

Senator Eggleton: No, I've asked you the question.

Mr. Alexander: Yes, and then you interrupted my answer.

Senator Eggleton: I'm saying: Are you calling communities barbarian?

Mr. Alexander: I am calling those who commit violence against women guilty of barbaric practices, hence we have this bill. Are you trying to tell me that this practice is not barbaric?

Senator Eggleton: I'm asking the questions. Forced marriages, honour killing and polygamy are already against the law. They're already part of the criminal law of this country, covered by things like abduction, forcible confinement, homicide, abuse, et cetera. Why is this necessary?

Mr. Alexander: Because they're still happening in Canada.

Senator Eggleton: Why don't you prosecute them under existing law?

Mr. Alexander: Because the existing law is sometimes not sufficient to allow for prosecution. If we had not taken strong measures across the board, over the past eight years, we would not have a crime rate and a murder rate that are dropping as quickly as they are in Canada. I regret to say that the murder rate, for example, in this country, rose astronomically in the 1960s and has only gradually started to settle. It was still quite high in 2005. Over the past eight years, it has fallen dramatically, thanks to a variety of measures taken by this government and the cooperation of law enforcement, prosecutors and justice professionals across the board to bring perpetrators of violence to justice and to ensure that repeat offenders are not released too soon back into their communities to reoffend.

Senator Eggleton: You've been in government now for eight or nine years, and you still haven't gotten a conviction of anybody for polygamy. Yet it exists within this country today?

Mr. Alexander: We are very proud to say that we've had arrests and charges laid for polygamy for the first time in over a hundred years in this country, and it never happened under a Liberal government, not once.

Senator Eggleton: There is a quote, in The Globe and Mail, from an immigration lawyer by the name of Joel Sandaluk. He says that, after practising immigration law in Canada for 15 years, he has never come across the issue. He's talking about polygamy: ''It's just something that's completely outside of my experience as an immigration lawyer.'' He's saying this doesn't occur.

Why do you feel the necessity to address this? The law of the land already exists on this matter. You say you need additional law, but here is an immigration lawyer who says it's not happening. There's not the evidence. There's not the experience of it.

Mr. Alexander: I congratulate that lawyer in not having had any clients who were polygamous.

Senator Eggleton: Maybe you could tell us which ones you know of.

Mr. Alexander: I would refer you to a wide variety of independent immigration settlement agencies, immigration lawyers and immigration consultants who see this practice around them every day, whether it is the South Asian Legal Clinic in Toronto or any number of members of the new Immigration Consultants of Canada Regulatory Council. This is not a large-scale issue in Canada, but it is a significant issue. It involves at least hundreds of persons and, possibly, thousands of persons.

Senator Eggleton: On the question of provocation, can you give any examples where the courts have allowed testimony about honour killing as part of a provocation? Do you know of any cases? I think we all find that equally abhorrent, but do you know of any cases in the courts in which that has happened?

Mr. Alexander: Yes.

Senator Eggleton: Where it has been successful.

Mr. Alexander: I know of at least one case where it was successful and dozens of cases where it was brought by the defence.

Senator Eggleton: Can you name the case?

Mr. Alexander: I can. I can also defer to my colleagues from the Department of Justice who have detailed knowledge, but I will name the case for you: R. v. Stone, [1999] 2 S.C.R. 290. This is not an honour killing but a killing where the defence of provocation was used, and that's essentially —

The Chair: What's the case?

Mr. Alexander: It's Stone, 1999.

The Chair: But it was not an honour killing case.

Mr. Alexander: It is a killing where the Supreme Court found that the legislative objective of the provocation defence was to reduce murder to manslaughter so that the mitigating nature of provocation be taken into account on sentencing. There was use of the provocation defence, successful use by the defence.

Senator Eggleton: I think the issue here is that your bill, Bill S-7 is on the basis of an honour killing having been used successfully, and there is no case.

Mr. Alexander: My response to your claim, Senator Eggleton, would be to say that the defence of honour as a basis for provocation has been used dozens of times in Canada, and its very existence under our criminal law weakens the defence that women and girls deserve to have in their own homes from their own relatives. We should not be allowing there to be any concept of family honour, however construed, as a mitigating factor for the murder of a family member.

Senator Eggleton: We never have allowed it. The court has never accepted it.

Mr. Alexander: I find it astonishing that a member of Canada's upper house would be questioning whether the weakening, for the protection of women, of a defence by reference to honour was justified. It could be used in the future, and its very existence sends a message to men and family members across the board, in homes across this country, that their honour is somehow at stake and could be used to defend them in a court of law from the charge of murder.

Senator Ngo: Thank you, minister. I have a few questions regarding forced marriage, especially in Canada. We know that forced marriage in Canada is unacceptable. Do we know of forced marriage happening in Canada, or do families take them out of the country for forced marriage?

How will the proposed amendment successfully prevent forced marriage?

Mr. Alexander: We know of many cases. I don't think there's definitive national data on this, but, from the research done by, again, the South Asian Legal Clinic in Toronto and other groups across the country, including academics, we know that in recent years there have been, again, hundreds, and there could be as many as thousands of forced marriages that have taken place on Canadian soil or that have involved Canadian permanent residents or Canadian citizens being taken out of the country for the purpose of forced marriage.

What will this bill allow us to do? It criminalizes officiating in a forced marriage and active participation in a forced marriage. Again, it gives law enforcement much more effective tools to prevent forced marriage and then to prosecute those who engage in it.

Senator Ngo: Do we have any case, right now, from the court regarding forced marriage, and, if we do, what are the consequences for those who commit those forced marriages?

Mr. Alexander: I would defer to my colleagues from the Department of Justice on cases currently before the courts.

Gillian Blackell, Senior Counsel, Family, Children and Youth Sector, Justice Canada: We are aware of one case related to a forced marriage in Canada. It's a case in Alberta, R. v. Bandesha, 2013, Alberta Court of Appeal. In that case, it involved an uncle and two cousins who assaulted the niece and cousin because she refused to marry someone they had told her to marry. It resulted in the uncle and one of the sons receiving a 90-day jail term, and all of the four perpetrators were ordered to take gender equality counselling.

Senator Ngo: I want to follow up. If these people committed crime under the Criminal Code, do we take their citizenship back or deny them permanent residence if this is the case?

Mr. Alexander: They would lose their permanent residence if they were found guilty of any indictable offence, including participation or involvement in a forced marriage.

Ms. Blackell: If they received a sentence of six months or more and were in a situation for possible removal.

Senator Andreychuk: I'm going to leave some of my questions for the department officials; they're more technical.

Minister, we've had this debate that the word ''barbaric'' is becoming the question rather than the real issue, and I appreciated your response that what you're after here is the violence being perpetrated. That fits into what we're trying to do with women right across the board, not just in this situation.

We have to address the issue of violence against women in all kinds of ways, but having the debate around ''barbaric,'' I'm worried that we're losing what you wanted to do. In that title, if you wanted ''barbaric cultural practices,'' which probably wasn't going to be my choice, I wish you had added something like ''violence'' in there. So how are you now going to overcome this debate to get on to the real debate, which is I think the one that women and communities have asked for, because the bill itself is necessary, in my opinion.

Mr. Alexander: The title has generated debate, and I think that in itself is a victory for the objective that we're trying to achieve. What is a barbaric practice? It is a practice that is unacceptable. It is a practice that involves violence, is in many respects indiscriminate, gratuitously meted out behind closed doors where women and girls are defenceless, or by whole families that conspire to ensure underage women lie about their age, take part in a forced marriage.

It is in my view, and I think the view of many Canadians, that it is barbaric to subject your family members to that kind of abuse. On the title, yes, there have been some people who are ambiguous about these things, who object, who think it's labelling an entire class of people, who may or may not be involved in violence of any kind, in a negative way. It is absolutely not that. Aruna Papp, a victim of some of these practices herself, said it's spot on. Christian Elia, Executive Director of the Catholic Civil Rights League, said ''The Barbaric Cultural Practices Act identifies practices which are indeed barbaric. . . . It's the correct term for such acts.'' Gwen Landolt said, ''Barbaric is a good term to describe honour killings, polygamy and child marriage.''

We have dozens of quotes, all from women, which go in this direction. It reminds us that there is no room for ambiguity in 2014, particularly on the eve of the Polytechnique anniversary, about violence directed against women. It's barbaric.

Senator Andreychuk: Thank you for the explanation. That is where you will have to spend some time, because I don't think it's one community, one ethnic group or racial group. I think we've come a long way in Canada. Even though we've had polygamous laws on the books saying it's not within our law, we need to move on it. And that's my next question. You've talked about that crossing the border. What are we going to do about those who practise polygamy within Canada and particularly, as you said, communities that have been here for some time, most notably in British Columbia?

I appreciate what the federal government has tried to do along with the British Columbia government. Is this bill going to help us in any way get at that problem? Because it's also always balanced against Charter issues.

Mr. Alexander: It will help us at the border on this whole question of the smuggling of multiple wives and the exchanges that go on between Bountiful and other similar communities in the Western United States. They are connected, over generations, from what I understand.

But the forced marriage provisions and the minimum age will also help us work against polygamy and polygamists to the extent that a second or third wife is being married against her will, and those involved, officiating, participating actively are now breaking a new provision, violating a new provision of the Criminal Code. Law enforcement will have new tools.

On the whole challenge of obtaining evidence that polygamist marriages have happened in Bountiful and so forth, we will continue to look to law enforcement to do that work. As I say, polygamy has been a crime in Canada since 1890. There have been some measures to see it enforced in recent years. We have had some arrests, but the work of turning those arrests into convictions will continue.

Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Justice Canada: One important piece of information to remember is that under our constitution, the investigation of crime and the prosecution of offences is a matter of provincial responsibility. These matters are, in the case of Bountiful, entirely within the mandate of the provincial government.

The Chair: For clarification, since I come from B.C., the lead on this was taken by Liberal Attorney General Wally Oppal on the Bountiful case. It was led by the provinces, not by the federal government; is that correct? Are you done? I wanted to clarify. She said yes.

Senator Andreychuk: If we're going to get into that —

The Chair: I'm just clarifying.

Senator Andreychuk: I do know there have been federal government justice ministry conversations about this issue. While it may be technically the administration of justice in a province, the federal government has the responsibility over marriage, divorce, et cetera. So I trust there have been conversations on how to strengthen the law and if not, I'm asking the minister or anyone else, have there been?

Mr. Alexander: With this government, you all know there is constant consultation and effort to concert our work — provinces, territories and the federal government — to ensure that the law is upheld. It does bother us at the federal level to know that polygamy is a crime and that it has gone unprosecuted in a large number of cases, in Bountiful and elsewhere. I will leave it to the Minister of Justice to comment on the most recent consultations in that regard, but these tools will be useful to him and to provincial law enforcement in continuing to pursue prosecutions for polygamy and for the forced marriage misrepresentation at the border, human smuggling, which unfortunately contributes to the practice of polygamy at Bountiful and elsewhere in Canada.

Senator Nancy Ruth: Thank you for being here, minister. There is a lot of backup that goes into supporting legislation once it has been passed. What are the various departments of the government planning to do to help communities understand the new law, the system in whatever needs assisting in?

Mr. Alexander: There is a lot under way already, which we will be able to strengthen with the passage of this bill into law. For instance, in terms of the information that we make available to women, girls and everyone who has come into Canada, even before their arrival here, we plan to make sure there is special emphasis on violence against women, its unacceptability, including direct reference to the practices in this bill.

The office that my colleague Dr. Kellie Leitch leads as minister responsible for the status of women has had a number of projects under way, as you know, across the board in recent years to fund advocacy groups, to fund work in communities and especially those most affected by violence, including Aboriginal communities, to bring attention to these issues. That work will be strengthened by this bill.

There has been $2.8 million from Status of Women Canada in funding in support of projects focused on stopping forced marriage since 2007, just as one aspect of that work. The RCMP has developed online training on forced marriage and so-called honour-based violence for its officers and will share information with municipal police and other agencies through the Canadian Police Knowledge Network in 2014.

By bringing this bill forward we're saying to police that this is an area of innovation, there are new measures here soon to be enforced under the Criminal Code. That leads to training of the RCMP. That leads to training with provincial and territorial partners. The same goes for CIC in terms of all the training that we do of our officers and CBSA officers who have the very difficult job of detecting this sort of behaviour, even with enhanced tools, when those who are coming across the border are often working very hard to make sure that it is disguised as something else.

On the whole question of polygamy and forced marriage, my colleague David Manicom, who has been manager of one of our large programs and an immigration officer, has seen this first-hand. I'm sure in the second hour he will get a chance to share some of his experiences with you.

Senator Nancy Ruth: Most of the efforts are through officials like the RCMP, policing and your own officers. When you stated that under $3 million has come from Status of Women Canada over the last seven years it didn't seem like much money.

Mr. Alexander: No. Status of Women Canada's budget is not enormous. It has grown in recent years, but that's just for the issue of forced marriage. They're active with Aboriginal communities, on domestic violence generally, on cyberbullying, and our budget for training is very large indeed.

Senator Nancy Ruth: It seems like there's a lot of effort to train the staff that would be involved in cases like this or people at Immigration Canada but not as much money set aside to help those who would have interest in this who are already here in Canada. That's really my question.

Mr. Alexander: There is. As you know, over our time in government the budget for immigrant settlement services has tripled. It has gone from roughly $300 million to roughly $900 million. A third of that is spent in Quebec, but there is a much larger portfolio of services offered to all immigrants than ever before, and by holding these consultations and by bringing this bill forward we're saying to the whole community that preventing violence against women and reminding women and girls of their rights under these new laws is one of your responsibilities. There are some things that settlement services need to do less of.

We're getting more immigrants with higher levels of English and French than ever before. Sometimes spouses, refugees and so forth, will continue to need support on that front, but many don't. We can rededicate some of those resources to issues such as this, such as those covered by this bill, which are important to all of us. These immigrant and settlement services, agencies that are among the first to encounter the victims, are our early warning network.

Senator Tannas: Minister, this bill creates a new indictable offence for celebrating, aiding or participating in a marriage rite or ceremony, so I guess it will add discomfort to that already awkward silence at weddings when they say, ''Does anybody know a reason why this marriage shouldn't happen?''

Can you tell me if we're a guest at a wedding do we now need to get involved in the paperwork and satisfy ourselves that everything is on the up-and-up just by attending?

Mr. Alexander: No. It is not under this bill an indictable offence to attend a wedding or to merely witness a wedding where a forced marriage is taking place. You have to be an active participant, which means have a substantial role, or you have to be officiating, overseeing the solemnization itself. There will be a larger number of people to whom this responsibility now extends, but it won't be everyone who is there.

I would say there is a public bearing witness aspect to a wedding, and there has always been a responsibility because it is a public act of those who attend to try to make sure that they know the participants, they know their minds, and we're just underlining that responsibility here.

I should add that this in no way — in absolutely no way — affects the whole concept of an arranged marriage. It is absolutely acceptable, has always been and I assume will always be possible for families or other adults of an older generation or even friends to introduce spouses to one another, to make the case for why they would like each other, and then for the informed, enlightened consent of the two spouses to come later. That is actually, as I think we all know from first-hand, a powerful combination. And so an arranged marriage must not be confused with a forced marriage where the enlightened consent of the participating spouses has not been given.

Senator Tannas: In the context of this bill, what else can be done or what should we be doing to encourage people to come forward?

Mr. Alexander: I think it's hearings like this and debate of the kind we've been having that is the most powerful instrument. I think it's going into communities, immigrant communities, communities of native-born Canadians, of Aboriginal Canadians, and talking about these issues. It's bringing law enforcement to the table and having them make it clear that they are interested in these issues.

We all know how difficult it is to have cases of domestic violence, sexual assault and other forms of domestic violence reported, but our police services, thankfully, today, when they receive a call, respond. Not every member of every newcomer group, immigrant group, knows that that is the case. The police behaved very differently in their country of origin. The whole question of honour and family implications of getting the police involved has a very different tenor in their home country experience.

We can and must educate newcomers in the detail of how the Canadian justice system, Canadian law enforcement works as quickly as possible, and we have to continue perfecting the work of our law enforcement agencies so that they respond flawlessly and effectively to cases of domestic violence. Our main goal is to prevent violence in the home and in our communities. I think that has to start by talking about it, by acknowledging it exists and then by discussing with victims and also with other community leaders what can be done to reduce and prevent these phenomena in the future.

I think this bill, along with a lot of other initiatives we've had on the justice front, will be an important step in that regard, but not if we don't educate ourselves and lead the process of educating others.

The Chair: Minister, I have a question for you which directly concerns your department, and that's to do with polygamy. If I read proposed section 41.1(1) in the new bill, it says:

A permanent resident or a foreign national is inadmissible on grounds of practising polygamy . . .

I have two scenarios for you. A man comes to this country as a visitor. He is in a polygamous relationship but he comes alone. He would be able to enter Canada because he's not practising polygamy in Canada; am I correct?

Mr. Alexander: Correct, he would be able to enter.

The Chair: If he came with his wife as a visitor, he would be practising polygamy in Canada so he wouldn't be able to enter; is that correct?

Mr. Alexander: Correct.

Senator Jaffer: If a permanent resident came to Canada on his own, left his wife behind, in theory he would be able to enter Canada as a permanent resident because he's not practising polygamy here.

Mr. Alexander: If he came as a permanent resident he would be required to declare all of his dependents, even if they weren't following immediately. And if that declaration were made, he would not be admissible because the right to reside in Canada would also be extended to spouses and dependent children. If he didn't make that declaration, he would have misrepresented himself and therefore be inadmissible.

The Chair: From what I understand in the bill, it is about practising polygamy in Canada. It is not about practising polygamy elsewhere; is that correct?

Mr. Alexander: We have no power to outlaw polygamy in other countries.

The Chair: I wanted clarification. Minister, Bountiful has been brought in here, but the majority of people in Bountiful are Canadians. This bill does not apply to them. This bill applies only to visitors and permanent residents.

Mr. Alexander: It does, but there are many Americans involved in the life of Bountiful, so it would apply to them.

The Chair: You have explained that. What I'm saying is that the main actors are Canadians, and this bill would not apply to them.

Mr. Alexander: Correct, but it applies to Canadian citizens and permanent temporary residents equally. There are just different consequences for different categories. If a permanent resident is found to be practising polygamy, they will be removed from Canada. If a Canadian citizen is found to be practising polygamy, they will face —

The Chair: Charges?

Mr. Alexander: Investigation and potential prosecution.

The Chair: Minister, would you be kind enough to take one more question? I know it is nine o'clock.

Mr. Alexander: I would be delighted.

Senator Eggleton: I want to make one comment about use of the word ''barbaric.'' I understand that you are only applying it to the act and maybe people that perpetrate those acts you would consider barbarians, but you are saying not the general community. The word ''barbarian'' is affiliated with barbaric, obviously, and it has some history in this country that I think has to be borne in mind. It's a long time ago, and it has to be looked at in the context of that time, of course, but in 1885 John A. Macdonald, our first Prime Minister, said:

We have had a wonderful success; but still we have had the Indians . . . forgetting that we had given them reserves, the means to cultivate those reserves . . . forgetting all these things, they rose against us. Why, Sir, we are not responsible for that; we cannot change the barbarian, the savage, into a civilised man.

So that designation of ''barbarian'' harkens back to a time of perceived Anglo superiority, and I think we have to be very careful about how we use that phrase given the history in this country. Different time, different context. I understand that, but I think we have to be careful.

I do want to ask you one more thing about this question of a child being removed from Canada for a forced marriage and the fact it can come before a court. An action can be brought before a provincial judge that would hear the case and perhaps stay any attempt by the parents to remove the child, somebody under 16 years of age. But do we really expect somebody — a child — to bring their parents before the court? How is this going to get before the courts? How are we going to be able to effectively stop this kind of practice?

Mr. Alexander: One of the measures that I describe is to allow an underage child, who is being taken out of the country or faces the prospect of being taken out of the country for the purposes of forced marriage, to act to prevent that without bringing criminal charges by means of a peace bond. That is one of the measures. We can describe that in greater detail if you wish.

Let me just respond to your claim about Sir John A. Macdonald, who was the first Prime Minister in this country to actually enfranchise First Nations to give them the vote. That vote was taken away by later Liberal governments. And so I object to the implication, and I object to the suggestion that anything in this bill is directed against anyone or any category of persons, other than those who practice violence against women.

I think it really is disappointing that someone of your stature, Senator Eggleton, would make a suggestion that a category of persons was being referred —

Senator Eggleton: Senator Andreychuk, one of your members, suggested that you perhaps should have reconsidered that word. I'm just giving you some advice, some caution about —

Mr. Alexander: I have obviously struck a nerve because you are interrupting me now.

Senator Eggleton: Well, no, I obviously struck a nerve because you are bringing back a political answer.

Mr. Alexander: You have suggested that the term ''barbaric'' in this bill relates to a category of individuals, and I think you mentioned Aboriginal Canadians, citing a quote from 1885. It does not. It relates to a category of individuals who practice violence against women, and I will remember for a long time that a Liberal senator, former cabinet minister, suggested that violence against women was not barbaric.

Senator Eggleton: No, I never said that.

Mr. Alexander: Around this table. You said it several times.

Senator Eggleton: No, no, I'm talking about the use of the word. I say it is equally important; I think we all agree that this is not a practice that is acceptable in this country and, in fact, the law should be provided. I'm just saying you have to be very careful about the use of that word, particularly given the history in this country.

Mr. Alexander: We will be very careful to apply it to those who practise violence, in this case especially against women. We will also be very careful to point out that the leader of the Liberal party — today's leader of the Liberal party — several times suggested that it was inappropriate to use a term like ''barbaric'' to describe female genital mutilation and honour killings. This is one of the reasons why we choose to use this term. There is persistent ambiguity in this country about these issues. There is no room for ambiguity about violence against women.

Senator Eaton: Hear, hear.

Senator Eggleton: Also, the law you bring here has very little evidence base to it. We heard of one case of forced marriage that this is based on, and absolutely no successful cases of honour killing. You have current laws to deal with it and you seem to be more focused on trying to bring a new law in when you have existing laws to deal with this matter.

Mr. Alexander: Well, you clearly haven't read the evidence that has been presented by the researchers involved in preparing all of you and members of the House of Commons —

Senator Eggleton: Quite a bit here.

Mr. Alexander: — for this session because there are dozens of organizations cross this country. You will hear from David Manicom and others in my department that have direct experience of forced marriage, of polygamy, of the defence by honour, citing provocation under our current law. These are all realities for thousands of Canadian women and girls, and for hundreds of millions of women and girls around the world. They deserve to be addressed.

The Chair: Senator Andreychuk wants to ask a question.

Senator Andreychuk: It is not a question. It is just a point of privilege. I asked the question that there are barbaric practices, and the debate was whether ''barbaric'' was an appropriate phrase. I wanted the minister to respond because my concern is about violence against women, overwhelmingly. I was satisfied. I want it on the record that the minister is identifying that this is his method, his government's method of pointing out why violence against women needs to be addressed with that title.

It wasn't that I was questioning it, per se. If the compelling case can be made that this is the best approach, it is the government's choice, but I wanted to know the full explanation and the minister certainly provided that to me.

I didn't can't want the inference that Senator Eggleton was putting on.

The Chair: Minister, thank you very much for your presence today. I appreciate your being here. We hope there will be other times that you appear in front of our committee, and thank you for agreeing to stay a little longer.

Mr. Alexander: Thank you very much, Senator Jaffer. The people who object to this term tend to be the ones who haven't seen it first-hand or been victims of it. Those who have been close to it — and there are too many in this country, and many, many more outside of this country — find this term perfectly fitting. I think it behooves all of us, as those who care about victims, care about preventing violence, to go with their instincts on this particular front. Thank you.

The Chair: We still have a lot of questions.

I have a question of the Justice people: Can you clarify the process for a peace bond? Maybe I'm wrong, but my understanding is that the person has to go to start a process with the police in order to get a peace bond.

Ms. Blackell: Thank you, senator. It is often a police officer, but it doesn't have to be a police officer. The provision says ''any person who fears that another will commit,'' so it allows any person to act on behalf of that victim to apply for the peace bond. The case is then presented by a Crown prosecutor, and, if there is evidence by the informant that presents a case that the defendant is more likely than not to commit the offence, then the court may impose the recognizance, the peace bond.

The Chair: Ms. Blackell, what I understand from you is that a police officer could go to court on his own and ask for a peace bond against Mr. X if he thinks Mr. X is going to force his or her child into a forced marriage?

Ms. Blackell: Yes, on the basis of evidence from the potential victim, so, if there's any concern that the court has, then they would call that victim to testify to their fear.

The Chair: The child would have to complain. She would have to go to the police and set a legal process in place. Is that correct?

Ms. Blackell: Again, someone can act on the child's behalf, so it could go through child protection. Usually, they would be acting on behalf of a child in need of protection, and, certainly, in forced marriage cases, they would, because of this legislation, clearly fall under the auspices of child protection authorities as a child in need of protection from a forced or underage marriage. They could then apply on behalf of that child or have a police officer apply on their behalf. It could be a victims services worker or, in the case of an adult, someone who works in a shelter for battered women, so there are a variety of individuals who could apply on their behalf.

Senator Eggleton: The question I asked of the minister he didn't answer. He got sort of sidetracked on his terminology in the bill. So, if a young girl is about to be removed from the country by her parents for forced marriage in another country, as I read the act, it requires that a matter be brought before a judge. Surely a young girl is not about to trot into a court and say, ''I'm about to be removed from the country.'' You may say that somebody else can bring it on her behalf, but they may not know about it. It may even be just a suspicion on the girl's part that this might be about to happen. How does this work effectively to prevent that kind of thing from happening?

Ms. Blackell: It is a tool in the tool box for victims. It is an additional tool that would be added that would specifically point to the risks of a forced or underage marriage. Like other peace bonds, it could be obtained by someone on behalf of the victim. The proceeding could even be ex parte. It could be rather rapid, without having the defendant present, if there was a sense of urgency in that particular context.

They are designed to respond to emergency situations. This tool is actually extremely helpful, as the minister pointed out, because a victim could go to the authorities and seek help from anyone who could then access the bond on their behalf, seeking some protection to say, ''I don't want to have my family members criminalized, but I don't want them to force me to marry, either.'' This is an excellent compromise, in that perspective, because it allows the victim to have an order, basically an injunction of sorts, a preventive order, against the individuals who are threatening to marry them, with certain conditions, and it is not a criminal charge.

Only if they breach the conditions of the bond or refuse, without reason, to enter the protective order will they be criminally liable.

Senator Eggleton: Okay, I understand all of that. I suppose that, from a legal proceedings standpoint, that's probably as far as you can go. A 14-year-old girl who suspects this also has the additional reluctance of doing anything that is harmful to her parents. She presumably respects and loves her parents, and, as much as she doesn't want to be subject to this tradition that her parents seem to be following, she nevertheless may have a great reluctance to go any route that involves a legal proceeding.

Is there something that the department or some other department of government could do that would help a person in that circumstance, short of having to go the very official legal route? That's not necessarily to you; it may be to other officials. Is there anything to help in that regard?

Ms. Blackell: Well, the Department of Justice has actually held seven sector-specific workshops with Crown prosecutors, police, shelter workers and front-line community service providers, as well as child protection workers, specifically on the issue of forced marriage and its link to honour-related violence because honour-related violence is often a means of enforcing the marriage or a repercussion for refusal to enter the marriage.

We have had discussions about the particularities of these forms of family violence in the context of our overall work on family violence and the particular needs of the victims. So we are working with these groups to create networks across the country to provide a safe response to these cases because we recognize that the risks are quite distinct, and, through our family violence fund, we are funding a number of organizations, including SALCO, the South Asian Legal Clinic of Ontario, to work on risk assessment, education and awareness and various other tools across the country to assist front-line responders and respond to these cases.

The needs of that particular victim, at that particular time, need to be met, regardless of whether that is to take a criminal law route or just to get shelter. So we're aware of this. This is just another tool, and the peace bond provides us with a unique tool within the Criminal Code that allows for a response short of a criminal charge. This does provide for that type of response.

Senator Eggleton: That's a good thing, although the young child may not want her parents called ''barbarians.''

Senator Andreychuk: In practice, as I recall, this would not often be a situation where the child already goes for a bond because she has two loving parents. I would think that the signals have gone between the child and the parents. She's not willing to do this, but the parents are not listening or perhaps even one of the parents is under great stress and pressure from the parent who is insisting.

Would this be another tool to at least separate the child so that she can get some other counselling and services and the same for other family members? I don't see this as an intrusion, a quick intrusion into a family, but almost a last resort intrusion into the family.

Ms. Blackell: Indeed. In think that's a very good point, senator. In terms of our consultations with child protection officials, they have indicated that the current law is somewhat lacking in their ability to intervene to protect children from a forced marriage. That is why, with the specific forced marriage or underage ceremony offences, it provides sort of a touchstone or anchor offence in the code upon which we have built in these protection orders as a means of preventing, as well as removing a child from Canada for the purpose of a forced or underage marriage.

Those are definitely tools that can be used by police as well as child protection workers in providing the appropriate response, because certainly child protection becomes engaged in the family and assesses the needs of that particular victim in that context. So it could be counselling or other things.

The risks associated with these particular cases are extraordinary in terms of external involvement in the family. That's why working with community groups and organizations like SALCO are so important, as well as our work with the RCMP in terms of specific training so that their response is not too heavy-handed in these cases. When there's public knowledge of the forced marriage, it may, in fact, increase the risk exponentially to that victim.

A number of measures are being taken at various levels in terms of awareness, education and training to make sure that these tools are used in an appropriate way and in a manner that saves lives and doesn't put individuals at greater risk.

You are quite right that individuals who get to the point where they have reasonable grounds to fear are in a situation of potentially grave danger. So there is a responsibility to respond or to have the tools to respond to protect.

Senator Andreychuk: I have a question on another section.

The Chair: May I have your permission to ask a supplementary question?

Senator Andreychuk: Sure.

The Chair: You mentioned SALCO a number of times. Because people are watching, I would appreciate if you would explain what SALCO is. It is my understanding that SALCO, which is the South Asian Legal — I don't know the whole title. I know that they're the lead when it comes to forced marriages. They're sort of the authority when it comes to the community.

The minister talked about consultations in Vancouver and Montreal. Were there any consultations with SALCO or any other groups in Toronto before this bill came into place?

Ms. Blackell: The consultations would have taken place under the auspices of Citizenship and Immigration Canada.

The Chair: If you don't have the answer, that's okay, but if you can provide it at a later date, we would appreciate that.

Senator Andreychuk: I want to go to the sections on provocation as a defence. Can someone tell me whether the defence provocation will still be available and the case law will apply except for the amendments that you are making with the particular focus on forced marriage? How is it going to work in practice, in other words?

Ms. Klineberg: Thank you, senator. If I may just return to a question that Senator Eggleton posed, just to provide you a full context for this particular amendment, the starting point to understand and where this amendment comes from is if one reads all of the jurisprudence on the defence of provocation, including Supreme Court jurisprudence, if one reads the academic literature written about how the defence of provocation applies, if one looks to the laws of similar foreign jurisdictions, reports of law reform commissions, even some reports from bodies of the United Nations, a clear consensus emerges that the defence of provocation, which operates similarly in the common-law history of Canada, suffers from a variety of problems. One of the most commonly cited problems is that it is still used today to excuse homicidal rage against women, in particular in the context of spousal homicides. That continues to be true in Canada. Here I am speaking outside of the honour killing context.

When we look to the honour killing context more specifically, this has actually been looked at by a number of Canadian academics. They have looked at the honour killing cases that we are aware of where the defence of provocation has been raised. We know of three or four, depending on how you count, depending on whether the ultimate resolution of the case involved a discussion of honour killings and the context of culture and so on.

In all of those cases, it is absolutely true that the defence was unsuccessful for the accused who tried to claim it. However, it is not the case that any of these decisions — all of which were at the Court of Appeal level in British Columbia, Alberta and Ontario — it is not the case that they said as a matter of law that the provocation defence can never be raised and will never be successful in an honour killing context. They have managed to resolve these issues without, as a matter of law, deciding that question. It is actually an open question in Canada.

How it would work would be that an accused tries to say, ''The provoking conduct of the victim, given my cultural background, is something that my culture takes particularly seriously. You have to consider the objective reasonableness of my reacting by killing through the lens of an ordinary person from my culture.''

As I have mentioned, this is where the courts are not entirely clear. They have tended to say, ''No, we don't think that the person's background culture should be part of the test.'' But they have not decided it as a matter of law. In fact, the British Columbia Court of Appeal said that you should consider the application of the defence from the perspective of a regular person from that accused's community.

This is where concern lies, that in the future with cases like these, accuseds can raise the provocation defence again. And in any case where the murder is a spontaneous one as opposed to a premeditated one, all that an accused has to do is show that there was some insult from the victim that caused them to lose their sense of control and to kill in response, and that they did so all of a sudden, before their passions cooled. We think it is still possible that the defence could succeed in a case like this. It is probably unlikely, but it is possible.

Where this comes back to the amendment is that the Canadian academics who have looked at these cases, one, they have determined that these issues are not resolved. The other thing they determined is that, in fact, these cases conceal the reality that outside of the honour killing context, Canadian men are actually excused from murder for killing their wives in circumstances where the provocation was entirely lawful. It was an insult; it was the termination of a relationship; it was questioning —

Senator Eggleton: They're not acquitted. They go to a charge of manslaughter.

Ms. Klineberg: They're acquitted of murder and convicted of manslaughter in spousal homicides for merely insulting verbal behaviour. This is, as I mentioned, a common critique across the common-law world of the defence of provocation, so the reforms proposed in this legislation are meant to say that where the conduct of the victim is lawful — it's not threatening conduct; it's choices they have made and words they have uttered — that this ought not to reduce murder to manslaughter.

How the defence will work in the future is all aspects of the jurisprudence will continue to apply. It is only the nature of the provoking conduct that will be limited so that where whatever triggered an accused to kill was their wife terminated the relationship and as she was walking through the door, she insulted their sexual performance, for instance. That has happened. The provocation defence would be inapplicable in a case like that and simply not be raised.

It will continue to be available where the conduct of the victim is any relatively serious form of criminal behaviour, such as an assault. A simple assault, uttering threats or any form of violence can still amount to provoking conduct, which would make the defence available to be argued.

Senator Ngo: Thank you. This question is a little technical, and I am addressing it to the CIC.

If an immigrant is involved in a polygamist or forced marriage but it is only discovered after he or she becomes a Canadian citizen, could that be grounds to revoke the citizenship?

David Manicom, Acting Associate Assistant Deputy Minister, Strategic and Program Policy, Citizenship and Immigration Canada: No.

The Chair: I don't have any further witnesses, and as a chair, I take the liberty to ask a number of questions.

May I come back to the provocation, just so that there is no misunderstanding. We all have the bill in front of us. The people who are watching may not have the bill in front of them, so I'm going to read what you have set out in provocation. It's the conduct of a victim that would constitute an indictable offence under this act that is punishable by five or more years of imprisonment, and it is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control. That is provocation for the purposes of this section.

This does not mention anywhere honour killing separately. What you said could still apply, because it's not saying to the courts that you will never consider honour killing as a ground for provocation. First, I want you to confirm that honour killing is not mentioned in this bill.

Ms. Klineberg: That's correct.

The Chair: Second, this provocation section applies to all Canadians. It's defining the ground of provocation for all Canadians. It's not just Canadians or permanent residents who have been involved in honour killings. Is that correct?

Ms. Klineberg: That's also correct.

The Chair: I know the minister said it, but I want to again confirm it on record. There has never been a case in our country that has succeeded on the grounds of honour killings. Is that correct?

Ms. Klineberg: That is correct, Madam Chair, but I would just add that there have been successful cases of men who have —

The Chair: You already said that.

Ms. Klineberg: The facts of those cases are virtually identical to the facts of the honour killing cases, so the question —

The Chair: Ms. Klineberg, I asked you a question. The question I asked you is, has there ever been a case successful on honour killings in Canada? On the ground of honour killing, has there ever been a case?

Ms. Klineberg: It was successful at trial on the case of Tran, and that was overturned in appeal.

The Chair: There hasn't been, in the end, a case successful in Canada on honour killing?

Ms. Klineberg: That's correct.

The Chair: Now I'm being technical, but on Tran, it was in the obiter. It wasn't really the main part of that case. The court held it on the side. It wasn't the main part of the case. I studied the Tran case very carefully.

I also have a question for you on the provocation, and that is that for provocation to apply, the person has to first admit that they were at the scene, that there was a killing, and then the murder charge gets reduced to manslaughter because of provocation. Is that correct?

Ms. Klineberg: The essence of the defence is an acknowledgement that the person is responsible for the killing, and the reason they killed or the circumstances in which they killed were that they were provoked by the victim, so it would be impossible to claim a provocation defence while denying responsibility for the murder.

The Chair: Thank you.

Senator Eaton: Mr. Manicom, in response to Senator Ngo, you said that somebody's past Canadian citizenship could not be revoked, but if that person misrepresents his situation, is that not a case of revocation?

Mr. Manicom: Yes, senator. I appreciate the opportunity, because I was going to try to get the attention of the chair. In certain circumstances, working it all through, this could be conceivable. For example, if at the time the person obtained permanent resident status they had misrepresented themselves and concealed a polygamous relationship, therefore obtaining permanent residence through misrepresentation and subsequently became a citizen, and the misrepresentation through which they obtained permanent resident status was to be discovered, yes, this could lead to the removal of citizenship.

The fact that the person had, after becoming a permanent resident, been involved in a polygamous relationship would not in and of itself, under current law, prior to this change, be able to lead to subsequent removal of citizenship, so it would have to reach back to the fact that they obtained permanent residence in the first place through clear misrepresentation. I'm glad of the opportunity to clarify what was not a simple yes or no answer. Thank you.

Senator Eggleton: Can I supplement that, if I might? If somebody from Bountiful decides to leave Canada and come back, can they be stopped? Can their citizenship be revoked if they did not have a polygamous relationship prior to becoming a citizen of Canada?

Mr. Manicom: No.

Senator Eggleton: You can't stop it. You just have to use the Criminal Code.

Mr. Manicom: The Criminal Code would apply to them.

Senator Eggleton: Which nobody has been convicted under.

Mr. Manicom: Even very serious criminal offences do not lead to the stripping of citizenship. It's if you've obtained citizenship under false pretenses, which could reach back.

Senator Eggleton: I understand that, but they may not have been in a polygamous relationship before they got the citizenship.

The Chair: Then this bill wouldn't apply.

Senator Eggleton: No, it wouldn't apply, and the Criminal Code, which hasn't convicted anybody in a hundred years, would apply.

Just as a comment about the provocation that the legal counsel has given on this, as you quite correctly point out, there are cases other than honour killings where there are issues here, but then I would think the government, if it feels it is necessary to address those issues, could bring the matter forward. I don't sense from what I have heard in the use of the provocation argument that it can be approved by any court in relation to a minor kind of insult as opposed to something that is more in-depth in terms of the mental state of the person, which seems to be part of what has happened in some of these cases. I personally think that the courts know how to handle these matters on an individual basis. I suppose if the government feels that it needs more strength in the law, then it could always bring that forward, but that seems to me quite separate from this bill. This bill, as I understand it, and correct me if I am wrong, only deals with cultural references in terms of the use of the provocation argument. Is that right?

Ms. Klineberg: The Canadian academics I've mentioned who have looked at the application of the defence of provocation to honour killing cases have gone to great lengths, and they all agree that when we focus only on honour killing cases and we satisfy ourselves that it's okay and it has not succeeded in these cases so far, we almost in a way talk ourselves into believing that the way the defence works outside of the honour killing context is totally in accordance with Canadian values, and in particular gender equality. These academics say that if you look at how the defence is invoked in Canada and the cases where it is sometimes successful, it excuses male homicides against their current or former partners for mere insults on occasion in a manner that itself is not in accordance with those same values that the courts are concerned about in the honour killing context. In fact, what they're saying is the way the defence works in mainstream Canadian culture is a cultural defence. It is in fact an honour defence.

The common law origin of the defence of provocation dates back to the 1600s, from a time when the law considered women to be their husband's property. In fact, one of the main categories of provoking conduct from that period of time was a man coming upon another man in the act of adultery with his wife, and the courts referred to adultery as the highest invasion of man's property. This is the history and origin of the defence of provocation. In fact, I would also say that, in the early common law, it was an honour-based defence. It was not a defence based on lack of self-control. It was a defence that said if a man killed in certain circumstances, that killing was understandable as a way of restoring his honour. That is the origin of the common law defence of provocation.

At some point in the common law history, the defence came to be about the notional loss of self-control triggered by the provocation as opposed to the killing being an adequate response to conduct that violated a man's honour, but nonetheless, if you read the cases, you will still see references to notions of male honour and male pride.

The defence is raised by, I've seen in one study, a quarter of men who are accused of killing their current or former spouses. We did a study of 50 appellate cases we found between 2000 and 2014, appeal cases that dealt with the defence of provocation. Of those 50 cases, 20 of the accused were men who had killed their current or former wives. It is rarely successful, but it is sometimes successful by men who kill their wives when the conduct that provoked them to kill was mere insults.

Senator Eggleton: Let me get this clear. This is a bill that comes from the Minister of Citizenship and Immigration. It is presented here on the basis of honour killings in a cultural context as it's understood to be practised by some people in some communities around the world, and some of those people also practise or believe in it in Canada.

Are you saying that the legislation, as it is changed here, will cover all cases of provocation?

Ms. Klineberg: Yes, but I would raise as a more fundamental matter that the legislation is aimed at practices. It's not aimed at communities, as I believe the minister said. So the practice of excusing murder on the basis of a decision, such as to terminate a relationship, real or perceived infidelity or verbal insults, in most of the cases where these are raised and that is the nature of the alleged provocation, the accused are men who have killed their current or former partner. This is just to say there is a violence against women issue, which is the driving force behind the legislation in terms of these barbaric cultural practices, but is also an issue that affects all Canadians every day.

The defence of provocation invites compassion for male violence against women in its everyday application, and so these things are addressed together because they are conceived as it's all about violence against women. So they're related.

Senator Eggleton: I find it odd that it would come in a bill from the Minister of Citizenship and Immigration if it has a general application as opposed to a specific application, the basis upon which it is presented.

The Chair: Can I just clarify something else on the provocation? You had a very good explanation, but this bill goes further. It obviously applies to all. It's a general application but it goes further.

It says:

Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years . . .

So the victim has to have done something like a fraudulent activity, extortion, a serious assault or whatever. The victim has committed an act that is punishable by five or more years. That is the difference now. That's a very big difference from the provocation defence before. For example, now racial slurs or insults will not be covered because the victim will not have committed an act that is punishable by five years or more of imprisonment. There is a substantial difference now in the provocation definition, don't you agree?

Ms. Klineberg: Yes, though I want to be very clear that a simple assault, which is the mere application of force without a person's consent, there doesn't have to be any intention to cause are harassment or any harm caused, is an offence punishable by five years. That offence would qualify. Uttering verbal threats is also punishable by five years. That is an offence that would still apply. It doesn't have to be an egregiously violent form of threats. Routine assaults will still qualify.

I can only tell you that there would be a number of challenges in choosing. For instance, if one were to say this defence does not apply to honour killings, then the law would have to define what an honour killing is. That is somewhat of a tricky thing to do. As well, if that were the approach taken, there would not be a way of addressing the male violence against women in spousal homicides outside of where a person's culture is raised to help people understand why they did what they did.

You would have to ask the minister why this was the measure chosen to address the problem, but in effect, at present the defence of provocation can be raised if the provoking conduct of the victim was a wrongful act or insult. All that this amendment does is remove the concept of insult, and it defines the wrongful act to be criminal conduct.

So, yes, there may be rare cases where it will have a broader effect outside the context of violence against women, although I will say that in the context of racial slurs, I did some research to try to locate cases. I was only ever able to find two cases where the defence was successful. One of them was a recent case from 2013, which was an incredibly brutal domestic killing. It was a jury verdict, and even the trial judge at sentencing considered that the mitigating effect of the provoking words, which were not described in the judgment so we don't know what they were, was very, very minimal. He was satisfied that it was an intentional killing, and he was deeply concerned about the facts of that case. It was a brutal stabbing and blunt force trauma.

The only other case that I found dates back some time, and the facts are such that the defence of provocation should not have applied because the killing took place 30 minutes after there was a racial insult, and the defence requires that the killing be on the sudden before there was time for passions to cool. It's actually an erroneous application of the defence on those facts. I've not been able to locate any others where the defence was successful on the basis of a racial slur, except for those two cases.

The Chair: While we are talking about provocation, when the briefing materials were sent out and there were press releases about this bill, the Shafia case was mentioned. In the Shafia case, the defence of provocation was never raised. Is that correct?

Ms. Klineberg: That's correct.

The Chair: I want to touch on something we have not touched on, which is the age of majority or of marriage. I know that Switzerland and Germany have 18 years as the age of marriage. Why have we gone to the lower standard of 16 years?

Lisa Hitch, Senior Counsel, Family, Children and Youth Section, Justice Canada: Thank you, senator, for the question. To my knowledge there are only three jurisdictions that have 18 as the absolute minimum age. There is a great deal of confusion —

The Chair: Which are?

Ms. Hitch: Switzerland, Sweden and Pakistan.

The Chair: And Pakistan just passed that law, right?

Ms. Hitch: Forgive me, I'm not an expert on Pakistan law, but I have read academic commentaries suggesting that the Pakistan law is not an absolute minimum age. It's a criminalization of any marriage under the age of 18, but that any marriage under the age of 18 that is actually contracted will remain valid.

The Chair: But Switzerland does have the age of 18, and Sweden?

Ms. Hitch: Switzerland and Sweden have 18. All other like-minded countries are in the range of 16. The reason for this is a great deal of legal confusion about what minimum age means. There are actually three minimum ages to marry in Canada. The first one is the absolute minimum age below which no marriage may be valid for any child. Then there's a middle age where there are additional requirements for a valid marriage, parental consent in some instances, judicial consent in some instances, certificates by medical doctors of a pregnancy.

Then there's a third minimum age, which is the independent age of consent, whereby a child usually is no longer a minor and may consent without those additional requirements. Those three confuse everyone, and certainly the United Nations is not exempt in that their list of minimum ages lists Canada as having a minimum age of 18. So there is a lot of confusion.

At the moment, as the minister mentioned, there is an absolute minimum age only for the province of Quebec, which is age 16. Every other province relies on the common law, which is generally interpreted as 12 for girls and 14 for boys.

The province of British Columbia, for example, has an independent minimum age of 19, but they allow for marriages under 19 down to 16 with parental consent, and marriages under 16 years in special circumstances with court order.

The Chair: I have one question of you, Ms. Blackell, and that is on forced marriages. We know that the U.K. is more advanced in how they are dealing with the issue of forced marriage. This is very welcome in the sense that we need to have the word out there that, in Canada, absolutely, we will not accept forced marriages. I appreciate the idea of having that on the record.

My challenge is, what I have difficulty with, is how it will work on the ground? You have done so much work, so can you help me answer this question? A girl thinks — she's not sure; this is what I hear all the time in the cases I work with — that she, a Canadian, is being taken to her parents' country of origin. She's not sure that she will be forcibly married in that country, but she is suspecting. So I would like you to help me. She has not been hurt. She had not been assaulted. There is no violence. It's a family like any other family. There's nothing that would create a peace bond. What is available to her? Where can she go for help? That's number one. If a girl definitely knows — and I will use girls because I have never heard of a boy being forcibly married — a marriage has been arranged, she would then have to go and report it, if she's young, to child apprehension, and they would take on the case. For that to apply, she would have to leave her home. I'm giving you two scenarios. You've done so much work on this. How will this pan out once this bill is in place?

Ms. Blackell: Thank you, honourable senator. With regard to your first question, in terms of an individual who suspects that they may be forced into a marriage, there are a number of organizations across the country that will provide some advice, along the lines of some of the NGOs in the U.K., and we are presently adding the names of organizations that do provide support to forced marriage victims to the Policy Centre for Victim Issues' database of victims services so that that will be readily available to victims. We do also have public legal education and information documents: Abuse is Wrong in any Language, which is in 12 languages, and Child Abuse is Wrong, which makes specific reference to forced marriage and female genital mutilation and cutting, as well as honour-related violence.

So some outreach information is available. What is recommended by a lot of the organizations is that the individual contact consular affairs and give them information about where they're going to be if they are afraid that they may be forced into a marriage. If they inform friends back home and if they have a safe cellphone with them, that as well can be of use, and then, if they do run into problems abroad, they can try to contact consular services for assistance at that point.

It's a challenge, and of course, as was mentioned earlier, as with all family violence, be it intimate partner or child abuse cases, the barriers to reports are always there. You are tied to your family. You don't necessarily want to cause trouble, but you just want the violence to stop or not to occur, in the case of a forced marriage.

There are a number of potential preventive responses if a child contacts child protection, and we are working with child protection across the country, as well as outreaching to some of the schools, so that they have an appropriate response and don't show up at the door and speak to the parents. Child protection has a range of potential tools at their disposal to assist the child without having them removed from the home.

If a peace bond is determined to be a useful tool in that particular context, the child would not have to leave the home, either.

The experience in the U.K., based on the civil forced marriage protection orders that they have there, is that a lot of families that do force their children into marriage are very mindful of lawfulness. They do not necessarily want to break the law, so when they realize that, one, forcing their child is illegal or a crime, that is a bit of a wake-up call and, then, that if they take a child out of a country they will be convicted of a breach of an order, they don't want that to happen. In a lot of cases, these families are doing what they believe may be in the best interests of that child. It's erroneous because that child will most likely be subject to violence and sexual assault, but there is not necessarily that same malicious intent, at that point, and, if they realize that that will harm the child and that there are measures in place to protect the child, they're unlikely to breach those measures. At least that's the experience in the U.K. The peace bond scheme is the Canadian equivalent to what the U.K. has, although we are not a unitary state and cannot introduce the civil protection orders in the same manner they have.

You also mentioned boys, and there is an indication that there are boys that are forced into marriage. There are a lot of individuals in the LGBT community who are forced into a marriage, unfortunately, to a certain degree as a corrective element as well, which is a challenge.

Lastly, there was mention, at several points during the conversation, that this bill would create inadmissibility for forced marriage. The inadmissibility in the bill relates only to polygamy. The forced marriages provisions, as with the early marriage and the provocation, relate to the Civil Marriage Act and the Criminal Code, which apply to all Canadians and, of course, with the Criminal Code, to anyone committing offences on Canadian soil.

The Chair: Thank you for clarifying.

Senator Eaton: I've forgotten my question; I'm sorry.

I once opened a women's shelter for a minister, and one of the things that I found out was that schools play a very big part in some communities, that the teachers see the women who come with their children. They establish a rapport with the women. They find out which women are sometimes suffering violence at home. I was wondering if the schools would be a place to start with young women and if the school could be a refuge, in a first instance, if somebody is being forced into a marriage, if they tell the teacher. Has there been any thought of going into schools and trying to help teachers to look for things, notice things, what a teacher could do to help somebody? For a child to find a child service agency or go to their consul is kind of out of a young person's realm of connections.

Ms. Blackell: It was mentioned earlier on the question about our consultations with the provinces and territories. As you are aware, education is a matter of provincial jurisdiction, as is administration of justice and child protection, so, working in this area, we have to work very closely with our provincial and territorial colleagues. We have had discussions with child protection fora, as well as policing fora, and we are looking at ins into the education fora. It's a challenge at the federal level, given that we're not at that provincial-territorial table, but we are working through various channels to conduct outreach. I think the most important thing is that this allows us a hook upon which to do a wider awareness campaign, but, again, it's very important that, through the NGOs that we fund, information be provided about the very particular risks associated with an inappropriate response because, unfortunately, there were some lessons learned in the Shafia case because the Shafia girls did go to child protection authorities.

Senator Eaton: In the school, the social worker in the school.

Ms. Blackell: Yes, through the school because the schools have a duty to report to child protection authorities if they realize that a child is in need of protection, so, as a result, that trigger, the response, actually placed these individuals in greater danger. There's a real need to look at the unique risks associated, and that's what we are doing. That's why we're look at this as a very unique subset of family violence, which is very different, and authorities need to know that there are risks associated with certain behaviours in a certain context in which we may think, ''Oh, why would you be in danger, or why are you afraid of your brother?'' Perhaps going and having a conversation with the parents might not be the best thing in that particular context. There's a fair bit of ongoing work at those levels to raise awareness.

Senator Ataullahjan: My question was partly answered. I wanted to go back to boys in forced marriages because we have heard that boys are being forced into marriages. Are they not willing to talk about it? You will hear that girls are being forced into marriages. Have we had any cases? Have we heard of any boys that have publicly come out and said that they were forced into marriages?

Ms. Blackell: Yes, in the SALCO, the South Asian Legal Clinic of Ontario —

The Chair: We have almost run out of time. May I please get Senator Andreychuk to ask her question, and then you can answer both at the same time?

Senator Andreychuk: It was a supplementary to Senator Eaton. You were talking about forced marriages and that it may be difficult for that young person to go and talk about it and that it might not be the right response for social workers. But isn't that the case in all violence cases, when it comes from someone in authority? In all of the cases I handled with young people, it is very hard for a young person to defy a parent or an older brother, et cetera. So, in that sense, it is violence we're talking about, and it is very hard for the child to respond, whether it is forced marriage or any other thing. We're only waking up to the fact that forced marriage is one part of what goes on in a child's life.

Ms. Blackell: Exactly. Thank you, senator, for that question. Indeed, it is very similar to other forms of violence, with the exception of the fact that it is often in a collectivist context, and therefore the risks are multiple. It is rarely just one individual forcing them into a marriage. This is often related to the family honour, and, therefore, there will be other family members who may enforce this marriage. The risk to that individual of suffering violence from multiple individuals is much higher. That is why we work with the police, in particular, on appropriate safety planning and risk assessment. Of course, it is a case-by-case situation. The risks may be low in some and higher in others.

SALCO did identify cases of male victims of forced marriage. We do, through the consular services, repatriate victims back to Canada, and there have been cases of male victims of forced marriage of Canadian males abroad.

The Chair: Thank you very much for all of your presentations and for making time to meet with us. We look forward to working with you in the future. We will adjourn now.

(The committee adjourned.)