Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 29 - Evidence - October 5, 2017
OTTAWA, Thursday, October 5, 2017
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-210, An Act to amend 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, met this day at 10:30 a.m. for clause-by-clause consideration of this bill.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
I’m Kelvin Ogilvie from Nova Scotia, and I am the chair of this committee. I will ask my colleagues to introduce themselves.
Senator Seidman: Judith Seidman from Montreal.
Senator Stewart Olsen: Carolyn Stewart Olsen from New Brunswick.
[Translation]
Senator Mégie: Marie-Françoise Mégie from the province of Quebec.
Senator Cormier: René Cormier from New Brunswick.
[English]
Senator Hartling: Nancy Hartling from New Brunswick.
Senator Omidvar: Ratna Omidvar from Ontario.
Senator Dean: Tony Dean from Ontario.
Senator Raine: Nancy Greene Raine from British Columbia.
Senator Eggleton: Art Eggleton from Toronto, deputy chair of the committee.
The Chair: Colleagues, I want to remind us that we are here today to consider Bill S-210, An Act to amend 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.
As our witness for today’s meeting, we have the sponsor of this bill, the Honourable Senator Mobina Jaffer. I have the pleasure to invite her to make a presentation to us.
Hon. Mobina S. B. Jaffer, sponsor of the bill: Thank you very much. I would like to start off with thanking Senator Ogilvie, the chair, deputy chair Senator Eggleton and other members of the committee for inviting me to speak on Bill S-210, An Act to amend 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.
The purpose of this bill is simple, and the bill contains just one single clause. This bill will repeal the short title “Zero Tolerance for Barbaric Cultural Practices Act.”
That act covers four areas: polygamy, national age of marriage, forced marriage and provocation. The content of the act will remain the same. The way the act will be interpreted will remain the same. All I’m asking is that we repeal the short title of this act, the “Zero Tolerance for Barbaric Cultural Practices Act.”
Since the passage of Bill S-7 back in 2014, I have objected to pairing the words “barbaric” and “cultural.” When we put two ideas together, we take responsibility for horrific actions away from the person who committed them. Instead, we associate the crime with a culture and a community, and we imply that such horrible practices are part of a culture or a community.
I would like to take this opportunity to quote two witnesses who appeared before the Human Rights Committee to speak on this bill during the last Parliament to emphasize just how pairing the words “barbaric” and “cultural” marginalizes communities instead of the people guilty of the horrifying acts.
Sharryn Aiken from Queen’s University said:
I am not in a camp for being an apologist for violence — not at all. Let’s not make any mistake about that. It’s rather the pairing of “barbaric” and “cultural” that’s the problem, because it seems to imply that the people who are perpetrating harmful practices and/or the victims of harmful practices are somehow relegated to some select cultural communities.
As we know, that is a patent falsehood. We know that family violence, domestic violence, wife assault, and other forms of abuse are endemic across Canadian society. They affect newcomers, long-term residents, aboriginal Canadians and citizens of many generations. They affect Canadians right across the social strata of this country.
That’s the problem with the short title. It is suggesting that somehow there are only some communities that we need to be concerned about, rather than dedicating ourselves to eradicating violence everywhere.
Avvy Yao-Yao Go of the Metro Toronto Chinese and Southeast Asian Legal Clinic said:
. . . at the end of the day, if we go back to the drawing board, some of the provisions might well be kept, but then you need to change the conversation as a whole because, right now, the conversation is not just about whether the families are engaged in criminal acts but whether they are doing so out of their barbaric culture.
To give an idea of the picture that is being painted when certain cultures are called barbaric, I would like to read the definition of the word from the Oxford dictionary: “savagely cruel, primitive, unsophisticated, uncivilized and uncultured.”
That is how we describe cultures when we associate them with barbaric practices. We paint entire groups as cruel and uncivilized. We live in a country that prides itself on its diversity. By calling other cultures barbaric, we are going against the very value that lets Canada stand out among other countries around the word. This is not what Canadian parliamentarians do. Rather than marginalizing cultures and cutting them out of Canadian society, we should be sewing our different cultures together and promoting unity.
I would like to end by repeating Senator Ataullahjan’s words during her speech on this bill:
We achieve this with the passage of Bill S-7, but we achieve even more if we take steps to better position and, in this instance, to better communicate the intent of our laws, especially when they’re of such importance and consequence to new Canadians.
In discussion with members of the community over the past months, many have expressed their support for Bill S-7 and the important issues that it addresses. However, at the same time, they also expressed serious concerns with regard to its short title.
. . . I support . . . Honourable Senator Jaffer in this regard, and I would urge you to support the removal of the short title of this bill.
Honourable senators, I ask you to consider that when we have “barbaric” and “culture” together, we separate our communities. That is not the Canadian way. So all I’m asking you today is to get rid of the short title. I haven’t given another name to the short title because I didn’t want that to be the discussion. And after speaking to the drafts people, they said to me, “It doesn’t matter, because this is amending other bills.” As far as it is concerned, it has gone to the immigration bill, the marriage act, so it’s not really anything now. It’s just the title that is left.
The Chair: Thank you very much, senator. I’m now going to open up the floor to my colleagues, beginning with Senator Eggleton.
Senator Eggleton: I really don’t have a question. But congratulations on the bill; I support it.
Senator Jaffer: Thank you.
The Chair: You handled that question very well.
Senator Stewart Olsen: I don’t have a question, either. I was under the impression that the term “barbaric” referred to female genital mutilation. I apologize; I didn’t do my homework. I have it in front of me now. I have no questions, and I support your bill.
Senator Seidman: To continue along the same line here, Senator Jaffer, I too want to express my appreciation to you for your long-standing efforts to address the language in the short title, and I fully support your bill.
I wanted to ask you something. There were many advocates who worked on behalf of vulnerable women and children, including in UNICEF, who expressed concerns about the short title of this bill when it was first introduced. Are you in any position to share some of that with us?
Senator Jaffer: As you heard when Bill S-7 was being debated, I had worked on the issues of forced marriage for over 30 years, and of FGM, and I have travelled all over on the issue of female genital mutilation. But I have always said that we must never think it doesn’t happen here. Many years ago, the Liberal government passed a bill, against a lot of objection, to make it illegal to have the practice of female genital mutilation in Canada — I was the president of the Women’s Commission and pushed for this bill. So it’s not like I’m against it being illegal. I’m absolutely for it.
Let me give you one specific example. I don’t want to go too long. There is a community in Toronto — I won’t name it now, because I don’t want to cause issues for them — that I work with that is dealing with the issue of female genital mutilation. The young girls come to me and say, “We want this to stop. We want you to talk about it. When we stand up to talk about it, the mosques tell us, the temples tell us, you are making us all look barbaric.”
What I am saying is that this is absolutely illegal, but let’s take away the focus from a community to the individual, to the grandmothers or to the individual that is causing this act.
Where I come from, you know what upsets me very much is that we have had this Liberal bill — or the bill; it doesn’t matter — on illegal FGM in our country, but there hasn’t been one prosecution. Yet, it happens in our communities. So what I want to do is get rid of the title, and then go after our government and say, “Don’t just talk about it. Put in the resources to help our young girls.”
Senator Seidman: Okay, thank you. Important.
[Translation]
Senator Mégie: I would like to thank Senator Jaffer for pointing that out, because I was quite stunned to read such a title. What I thought was how is it that a bill with a title like “Zero Tolerance for Barbaric Cultural Practices” has been allowed to pass? I think that, as a legislator, when we give a bill a title, we need to look at the potential consequences and weight of using an expression like “barbaric cultural practices.” I will not repeat all of Senator Jaffer’s arguments, but when it comes to immigration, it creates divisions. The words “barbaric cultural practices” have a link to immigrants and newcomers.
Indeed, Canada promotes living together, an inclusive Canada, but it all collapses because this bill is tied to our work as legislators. I remind you that we should pay attention to a bill. We are all involved. That is why I support Senator Jaffer’s approach 100 per cent. Thank you.
Senator Cormier: I want to thank our honourable colleague for her bill, which leads to serious thought about what Canada is today and what it has been in the past. Without asking a direct question about the bill itself, I think that the current reflection about the short title reminds us that the co-existence of cultures is probably the greatest challenge of humanity of all time.
The connection we can make between violence and a specific culture divides people more than ever. We have a long tradition in Canada of cultures co-existing, but we also have a long tradition of sometimes combining certain violent actions and linking them to certain cultures. I think your bill reminds us of the importance of not making such connections and, above all, of not using the word “barbaric”, which was a word used at the time of the Greeks to mean “foreign,” or people who were not part of their civilization. So we certainly cannot exclude from our society anyone who is part of that culture, founding or new.
Congratulations. I support this bill. Thank you for your courage and determination in fighting these perceptions we can have.
Senator Jaffer: Thank you.
[English]
Senator Omidvar: Actually, chair, all of my questions have been asked and answered. I will just express my admiration for the senator in being dogged about this. Two years after it was tabled, it’s now here; so I wish her good luck and speedy passage.
Senator Jaffer: Thank you.
Senator Hartling: Thank you very much, Senator Jaffer. It’s an excellent bill. I really appreciate your tenacity. I guess the question I have — and I think you have covered it a lot of it — is this: What would be some of the potential consequences, if we continue to use those two words together in the bill, for the social fabric of Canada? What could happen?
Senator Jaffer: Thank you for asking this question, and thank you, Senators Mégie, Cormier and Omidvar.
Everyone in this room has this one focus, and that is to end violence, especially for young children. This bill covers forced marriages, which is still young children, and it covers female genital mutilation. So, to answer your question, when a child or a mother stands up and says, “I won’t have this practice happen,” I want you to think, “Where does she turn?” Because it’s somebody in her family insisting, she turns to her community. But the community says to us — and this is what I’ve been told and have observed — “But they are calling us barbaric. If we make it public, we are all seen as barbaric.” So what we do is disempower whoever is speaking out on it.
If we take away calling a culture or a community barbaric and look at the issue, let me give you an idea. On forced marriages, since I became a senator, I have been working with the U.K. government. The U.K. government has an amazing program. I dream that, before I finish, we will have it here. In every school, they have brochures all over that say, “If you think that you are going to be forcibly married, contact this phone number,” and they have a crisis line. If a child knows they are going to India, they will phone this crisis line. I have seen it. I have gone to the schools. I have seen the children, young people, use it. Mostly it’s women. They will phone this crisis line, which is situated in the Foreign Office. The child will say, “I am being taken to India on this date. I will be at this address. My parents tell me I’m supposed to return on Y date. If I do not return, please come looking for me.”
What British ambassadors have told me is that they get that notification, say, in New Delhi or in another country, and the child comes back. If they don’t phone, then they will go to that village and look for the child.
In our country, what happens is that a child goes. The child doesn’t know where to turn. They don’t tell anybody, and you know that the world is very big. It could be a small village in India or somewhere else, doesn’t matter. I’m not saying it just happens in India. Don’t get me wrong; I’m just giving an example. Then the child disappears. I have about 15 cases in which they can’t find the child. It’s a big, big place. I have some in Yemen. I have some in India. I have some in Pakistan and some other countries. So what I’m saying is that what we need to do is get the community to adopt this, get the community to be part of this, so that we can stop the practice. That’s why I’m asking that we change this.
Senator Raine: Thank you for your work on this issue and the depth with which you are helping so many people.
Senator Jaffer, I can’t imagine, but is there anybody against changing this title?
Senator Frum: Yes.
The Chair: You have an answer. A senator at the table has answered.
Senator Raine: Okay.
Senator Frum: I want to begin by apologizing to Senator Jaffer for being late and missing your presentation, but I have a sense of your position on this. I also want to say that I totally respect your very impressive record on fighting for the rights of girls and women, so that’s not the question I have for you.
I appreciate the only thing about the previous bill, the Conservative bill, that you want to change is the title. You don’t want to change any of the prohibitions, just the title. What we’re talking about, then, is symbols. You don’t like the symbolic meaning of calling the practices of honour killing, female genital mutilation, polygamy, bigamy and child brides barbaric practices. So we are going to have a situation now where those things are currently captured under a category of barbaric practices. Now, we are going to send a different symbolic message, which is that they are not barbaric. We’re going to remove the word “barbaric.” So what is that symbolic message, that those practices are now what? What are they?
Senator Jaffer: You know, if it was only “barbaric” — and you were there when we fought Bill S-7, a valiant fight, but I lose so many — but it was “barbaric cultural” practices. At that time, I don’t know how many times I met with Minister Alexander and said, “Make it ‘barbaric.’ Why do you want to make it ‘cultural’?” You know, there were many people on your side — and I won’t name them because I don’t have their permission, but you know who they are — who also begged, and said, “Don’t put ‘cultural.’”
To answer your question, they are illegal. There can’t be anything bigger. FGM is illegal in our country. Forced marriages are illegal. Honour killing is murder. Nothing else. It’s murder. It’s illegal. Even the Supreme Court of Canada, after 17 years, and I’m so proud of them, are bringing forward a B.C. case holding on issues of honour killing, as Senators Neufeld and Raine will know. They are illegal.
What I was saying is that we want to deal with the issues of forced marriage, female genital mutilation and other issues. It’s illegal. How much stronger do you need it?
Senator Frum: Senator, I just heard you say that the actual offensive word to you is “cultural.” So perhaps that’s the word we should be striking and not the word “barbaric.”
Senator Jaffer: But it’s “barbaric practices.” It is so engrained now in the way everything is done. You and I have, of course, very different paths in life. I grew up in a colonial era where we were called barbaric. In school, we were called barbaric. If we made a mistake and didn’t speak in English, we were smacked and told, “You are barbaric.” This holds for many people in this country. The word “barbaric” brings very bad connotations.
I had it in my earlier draft, which I then sought not to keep, that Aboriginal people were called barbaric in our country. It also exists in our country. If we want to change the practice, let’s deal with the practice. Let’s not do name calling.
Senator Frum: Okay, but I go back to my original question, which is we’re dealing with symbols, and when we take a word that is currently associated with the specific crimes of killing daughters because they are sexually active or they are not dressed appropriately, honour killings, female genital mutilation, which is done for the purpose of suppressing female pleasure, marrying off your nine-year-old daughter to a 50-year-old man, we’re saying that these things are currently known in our Criminal Code as barbaric practices and now they won’t be known as barbaric practices anymore. They are just illegal.
Senator Jaffer: With the greatest of respect to you, senator, what you say, how can I argue with you? Those are terrible things. Those are not the only things in our Canadian society that are unacceptable to us. As you know, I’m at the moment fighting for not having cybersex on devices. Pornography is not acceptable. Sexual abuse is not acceptable. Sexual assault against a child is not acceptable, and the list goes on and on. We could do a long list today. Those are all bad practices. None of us here accepts them. Why do we call some practices “barbaric” and leave some? That’s my issue. Let’s just deal with the issue rather than symbolically naming an issue and having the community not participate.
The Chair: Thank you.
Senator Mégie, did you have another intervention?
[Translation]
Senator Mégie: When we talk about barbaric behaviour, it can be aimed at a person of any ethnocultural background. You hear about it every day in the media. It has nothing to do with a culture. No matter what happens in other cultures, Canada is a country open to immigration. I think everyone here can go outside the country and say that Canada is a welcoming country, a country that does not make distinctions and where everyone is Canadian, and so on. Creating legislation with a title that includes the words “immigration,” “refugee protection” and “barbaric cultural practices” doesn’t make sense. It is contradictory. It isn’t a matter of symbolism. I find it completely unacceptable. We need to remove the symbols. The expression “barbaric cultural practices” would mean that they are the ones doing it. You are contradicting yourself by saying that Canada is welcoming, that Canada recognizes all cultures, that Canada is open to multiculturalism. These are all great words. Look at it with heart. The legislation you are proposing will be distributed to the Canadian public, and even the rest of the world will be able to read it. As legislators, we must take responsibility for giving such a title to a piece of legislation, and I find it aberrant.
[English]
The Chair: You have to get on the list. Do you wish to be on the list?
Senator Stewart Olsen: I have to say that after listening I have changed my position on this, because when we talk about polygamy in British Columbia, I have never heard us call it “barbaric.” I have heard us call it “illegal,” so I don’t think we can double standard as we go forward. I understand the cultural, and I don’t want to target specific peoples. I think I agree the practices are barbaric, but I think then we have to call them all barbaric. I think murder is barbaric. I think we should be careful a little bit. I once was very much fine with this until I actually heard people talk about it from another point of view. That’s all I wanted to say. Thank you, chair.
Senator Eggleton: This addresses Senator Frum’s question. I don’t think removal of the short title in any way reflects upon a change of our position. Our position is that these are illegal practices and should be prosecuted. It’s just that those words in the short title are not common parliamentary words.
The three acts that are being amended are very simple names: Immigration and Refugee Protection Act, Civil Marriage Act and the Criminal Code. We don’t get into quantifying a particular kind of illegal activity, so I don’t think the short title has any effect whatsoever. I don’t think the public will see it as backing off on any of these things. I don’t think the public has been very aware of this title.
But certain communities are very aware of the use “barbaric.” In fact, if you go down through the last 60 years or so our history, a lot of minority people in this country were called all sorts of names and grew up with that kind of discrimination. I think Senator Jaffer has quite clearly pointed out that at one point in time, as she knows in her own case or other cases, people were referred to as barbaric.
So let’s keep to the normal parliamentary language that we use, as in the acts that are being amended here, rather than throwing in this title, which obviously has no effect whatsoever in terms of the illegal status. We continue to prosecute in those areas. But it is obviously of pain to communities in this country.
Senator Frum: Thank you. First of all, I don’t think one can have it both ways. You can’t say that we’re doing this to make ourselves a more tolerant, multicultural society, and then say that this is targeting certain cultures. I’ll leave that.
The thing that these crimes have in common, that makes these crimes different from other crimes, is that they are all crimes committed against girls, underage women. I don’t agree that they fall into a category like murder, which of course is a terrible crime. They fall into a generalized category of practices committed against young girls who are deemed to be inferior to their male counterparts, and that is barbaric. It just is.
It is not consistent with the values of Canada. I don’t care what culture you are from, it is not part of Canadian values. Not just to treat girls differently, but to kill them because they are sexually active and to mutilate their genitals. It is different. It is serious. It is terrible, and it is happening in our country. We need to do something serious to prevent it. That is why these particular crimes were given this title.
Now, I agree, Senator Eggleton, we will send a message to small, specific communities that are aware of this. Those are the communities where these things go on. We will say to them, “Don’t worry, we don’t think they are barbaric. We just think they are regular old crimes.” And they are not; they are different.
Senator Jaffer: This bill doesn’t just cover girls, because polygamy, forced marriage, provocation can also involve young boys.
Senator Dean: First, Senator Jaffer, thank you for bringing this bill to us and for talking about it so eloquently.
We are talking about a short title here of a piece of legislation. When this bill was introduced and passed, as a Canadian, as a public policy professional, I was struck by the fact that this was a good piece of public policy, an important and vital piece of public policy. I was disappointed by the short title, however. That is putting it mildly. I support those who say — including you, senator — that this is being selectively applied. I think that was a conscious choice.
I saw this bill then — and I think I see it now — as important public policy in Canada, accompanied by — and I will put this gently — a poor choice of title. I will go no further than that. Is that your sense as well, senator?
Senator Jaffer: Yes, it is.
[Translation]
Senator Cormier: At the outset, I would like to say that I fully agree with you, Senator Frum, about the horror of these crimes. However, I am trying to understand our role as legislators. What is our responsibility as legislators? No doubt, it is to make bills that punish all the actions that we find unacceptable in our society. I think the bill reflects this principle.
However, with respect to the name attached to it, describing a culture in such a way — you mentioned Canadian values — I am not sure that it is our responsibility to label, to blend so-called “barbaric” practices with cultures. I don’t think that is what Canadians expect of us. I believe they expect us to have sound and consistent bills that will punish those unacceptable actions, but I am a little troubled by the fact that this title labels a practice and associates it with cultures in particular. I think that’s unacceptable.
That said, it does not detract from the horror of those practices or from the need to punish individuals in our society for taking those actions, but I do not think that it is our responsibility to label so-called “barbaric” practices by associating them with cultures.
[English]
Senator Frum: The difficulty I am having is that this act is now called “Zero Tolerance for Barbaric Cultural Practices.” That is the name now. What we are meeting about is removing that name from those practices.
I understand there are some people here who are uncomfortable that a label was put on crimes such as honour killing and female genital mutilation and forced marriage of nine-year-old girls. I understand people don’t like those crimes to be labelled because they are not special crimes. Now that we will take the label off, we are also making a statement. You don’t like the statement that was made originally, I understand that, and Senator Jaffer doesn’t like the statement that was made originally; so we are here gathered to make a new statement, and the new statement is that those are not barbaric practices. I am extremely uncomfortable with that because they are barbaric practices. That is all I can say.
The Chair: I want to encourage my colleagues to recognize the significant points that have been made, and we are starting to get into a repetition in these areas.
Senator Omidvar: I want to remind all of us that we are the house of sober second thought. I quote from the Canadian Bar Association that has consistently recommended that the government refrain from using short titles that seek to inflame the emotions of the Canadian public rather than to inform.
I agree with you, Senator Jaffer, that this inflames or exacerbates unnecessarily existing divisions.
Nothing in your bill changes the provisions in the sections for crimes of polygamy, honour killing and other expressions of brutality against young boys or girls; is that right? Nothing changes?
Senator Jaffer: No.
Senator Omidvar: People who commit these terrible acts will be taken to court and punished accordingly.
Senator Jaffer: Yes.
The Chair: Is it is agreed that the committee proceed to clause-by-clause consideration of Bill S-210, An Act to amend 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?
Hon. Senators: Agreed.
The Chair: Thank you. Shall the title stand postponed? Is that agreed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Senator Frum: On division.
The Chair: On division. It is agreed to carry on division.
Shall the title carry?
Senator Frum: On division.
Some Hon. Senators: Agreed.
The Chair: Carried, on division. Shall the bill carry?
Some Hon. Senators: Carried.
Senator Frum: On division.
The Chair: Carried, on division.
Does the committee wish to consider appending observations to the report?
Senator Eggleton: No.
The Chair: Hearing none, the answer is no.
Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you. That is agreed.
Colleagues, I want to thank you for your discussion on this. It reflects the fact that the Senate is prepared to discuss very serious matters, to consider all points of view, and to do so in a polite and logical format. I thank this committee for doing that.
With regard to the discussion, I think it has reflected the issues fairly and clearly. I have nothing further to say on that except to thank the committee for considering the bill, as it has done, and to thank Senator Jaffer and congratulate her with regard to the success of her bill.
(The committee adjourned.)