Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
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 (short title: Zero Tolerance for Barbaric Cultural Practices Act) was introduced in the Senate on 5 November 2014. The bill was referred to the Standing Senate Committee on Human Rights, which submitted its report with observations on 11 December 2014.The bill passed third reading in the Senate on 16 December 2014.
Bill S-7 makes polygamy a new ground for refusing admission to or the right to stay in Canada, provides that 16 years be the minimum age for marriage, limits the use of the criminal defence of provocation, and creates new offences and peace bonds related to forced and underage marriage.
The bill relates to a government commitment made in the 2013 Speech from the Throne to “take steps to ensure” that early and forced marriage does “not occur on our soil.”1 Further, it follows measures the government is taking to address these forms of violence against women and girls in international forums and in developing countries.2
Bill S-7 has the potential to affect all Canadians. As it amends family, criminal, and immigration law, some of the key concepts from these areas of practice are explained in this section to provide background for the description and analysis of the bill that follows.
Forced marriage occurs when “one or both people do not consent to the marriage. Family members sometimes use physical violence, abduction, forced confinement or emotional abuse to force the person into the marriage.”3
Forced marriage differs from arranged marriage in that at least one party does not consent to it. Arranged marriages are common in some cultures and occur when family or friends play a central role in bringing a couple together and arranging the terms of a wedding, with the consent of the individuals concerned.
Not much is known about the incidence of forced marriage in Canada. However, according to a report by the South Asian Legal Clinic of Ontario (SALCO), from mid-2009 to May 2012 the Department of Foreign Affairs and International Trade (as it was then called) assisted 34 people in a forced marriage situation – that is, before, during or after a forced marriage.4
In their survey of community organizations in Ontario and Quebec, SALCO found that those in a forced marriage situation had the following characteristics:
Polygamy, as it has been historically understood, is the marriage of one man to more than one wife; the term is also used more generally to refer to the marriage of one person to more than one other person. It is prohibited under section 293 of the Criminal Code (Code)6 and has been illegal in Canada since 1890. This prohibition was the subject of a reference case considered by the British Columbia Supreme Court in 2009, which found the polygamy provision in the Code to be constitutional with respects to adults.7 Charges in a separate case are currently before the same Court in relation to four people from Bountiful, British Columbia.8
As explained in greater detail below, polygamy is not a form of marriage recognized for immigration purposes by Canada. Only the first spouse may immigrate with a principal applicant or through spousal sponsorship, and only one spouse (the first) is issued a visitor visa when accompanying the principal applicant on a trip.
There appear to be no statistics as to how often immigration – despite the above-mentioned prohibitions – is used to facilitate the reunion of polygamous families in Canada. Further, there is no empirical evidence on the extent to which immigrants from countries where polygamy is legal and/or culturally accepted have formed polygamous families in Canada.
To enter or remain in Canada, foreign nationals9 and permanent residents10 must meet the eligibility requirements for the applicable visa (if required) and must not be inadmissible under the Immigration and Refugee Protection Act (IRPA).11
Sections 34 to 42 of IRPA provide the reasons by which an individual could be found inadmissible to Canada. These include, for example, engaging in espionage or in terrorism, criminality, or misrepresenting material facts in the course of an immigration application.
Foreign nationals may be found inadmissible during the visa application process, at a point of entry to Canada, or when making an application within Canada. Permanent residents may be found inadmissible in Canada or upon returning to Canada after an absence. A determination of inadmissibility requires “reasonable grounds to believe” that the facts in a given situation “have occurred, are occurring or may occur.”12 The consequence of being found inadmissible is removal from Canada.
However, it is possible for a foreign national or a permanent resident to overcome a finding of inadmissibility and be allowed to enter or stay in Canada where the circumstances justify the issuance of a temporary resident permit.13 The number of temporary resident permits issued is published in Citizenship and Immigration Canada’s annual report to Parliament and was 13,155 in 2013.14
The defence of provocation originates in sixteenth-century English common law, where certain killings were found to be “less morally reprehensible than deliberate ‘cold-blooded’ killings and, informed by the value of honour that formed an important aspect of that period’s social context, were viewed as partially excused.”15 As noted in the 2010 decision of the Supreme Court of Canada in R. v. Tran, “prevailing social mores and judicial attitudes have played an important role in defining what amounts to provocation at law.”16 The defence was traditionally invoked in situations such as spontaneous fights or a husband finding his wife in an act of adultery.17
Currently, section 232 of the Code outlines the statutory partial defence of provocation, which applies only to homicide. Where provocation is established, a person may be convicted of manslaughter (which has no mandatory minimum sentence except where a firearm is used, in which case the mandatory minimum is four years) instead of murder (mandatory sentence of life in prison).
Provocation is defined in section 232(2) as:
A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control … if the accused acted on it on the sudden and before there was time for his passion to cool.
The terms “wrongful act” and “insult” are not defined in the Code. However, section 232(3) clarifies that it is not provocation to do “anything that [a person] had a legal right to do.” This limit on the defence of provocation has been interpreted somewhat narrowly in the case law. In R. v. Tran, the Supreme Court of Canada stated that “the phrase ‘legal right’ does not include all conduct not specifically prohibited by law.”18 Instead, a legal right is understood as meaning a right that is sanctioned by law.19
In 2006, the Court of Appeal for Ontario dealt with a case in which a man had killed his wife after she made comments he took to mean she was having an affair. The accused argued that his Islamic religion and culture valued family honour, that a wife’s infidelity would be a source of great stigma for her husband and that the defence of provocation applied in his case. This argument was rejected, and the accused was found guilty of first degree murder. In its decision, the Court of Appeal stated:
A provocation claim rests on the assertion that an accused in a state of extreme anger lost his ability to fully control his actions and acted while in that state. Provocation does not shield an accused who has not lost self control, but has instead acted out of a sense of revenge or a culturally driven sense of the appropriate response to someone else’s misconduct. An accused who acts out of a sense of retribution fuelled by a belief system that entitles a husband to punish his wife’s perceived infidelity has not lost control, but has taken action that, according to his belief system, is a justified response to the situation. …
The difficult problem, as I see it, is that the alleged beliefs which give the insult added gravity are premised on the notion that women are inferior to men and that violence against women is in some circumstances accepted, if not encouraged. These beliefs are antithetical to fundamental Canadian values, including gender equality. It is arguable that as a matter of criminal law policy, the “ordinary person” cannot be fixed with beliefs that are irreconcilable with fundamental Canadian values.20
Bill S-7 is divided into three parts in accordance with the three statutes it amends.
Clause 2 of Bill S-7 creates new section 41.1 of the IRPA, which provides that the practice of polygamy, to be interpreted in a manner consistent with section 293(1)(a) of the Criminal Code, becomes grounds to refuse admission to or the right to stay in Canada for foreign nationals and permanent residents. This amendment will come into force on a day to be fixed by order of the Governor in Council.
An application to come to Canada, regardless of the status sought, requires full disclosure of a person’s family details. Currently, when visa officers notice that an applicant for permanent residence has more than one spouse, the applicant is informed that polygamy is against the law in Canada.
At the moment, officers are guided in their decision-making by operation manuals that explain that persons in a second or third marriage, occurring while a first marriage is ongoing, cannot be recognized as members of the family class (section 117(9)(c)(i) of the Immigration and Refugee Protection Regulations).22
In order for the first marriage to be recognized as legally valid under Canadian law, the couple must live together in a monogamous marriage in Canada. Common law imparts that a polygamous marriage can be converted into a monogamous marriage provided that the couple live together in a monogamous relationship from the time of arrival in Canada. This conversion is effected by the stated intention of the parties to so convert their marriage, followed by some factual evidence that they have complied – usually by divorcing the other spouses and/or by a remarriage in a form that is valid in Canada.23
The operation manual states further that if a husband wishes to sponsor a wife other than his first spouse, he must also divorce his other wives and remarry the chosen wife in a form of marriage that is valid in Canada.
New section 41.1 of the IRPA introduces polygamy as grounds for inadmissibility for a foreign national or a permanent resident if it is practised or will be practised in Canada. If a permanent resident already living in Canada engages in polygamy, he or she could be removed.
A foreign national such as a tourist or an international student practising polygamy and accompanied by a spouse will not be admitted to Canada under new section 41.1 of the IRPA. Unaccompanied polygamists who will not be practising polygamy in Canada will generally be admissible, however.
The new section 41.1 of the IRPA relies on the interpretation of polygamy that exists in section 293 of the Criminal Code. The most recent decision outlining the interpretation of this provision states:
From all of this, I conclude that properly interpreted, s. 293(1)(a) prohibits practicing or entering into a “marriage” with more than one person at the same time, whether sanctioned by civil, religious or other means, and whether or not it is by law recognized as a binding form of marriage.
The offence is not directed at multi-party, unmarried relationships or common law cohabitation, but is directed at both polygyny and polyandry. It is also directed at multi-party same sex marriages. …
When all is said, I suggest that the prohibition in s. 293 is directed in part at protecting the institution of monogamous marriage. And let me here recognize that we have come, in this century and in this country, to accept same-sex marriage as part of that institution.24
The Civil Marriage Act came into force in 2005, establishing at section 2 the legal definition of marriage in Canada: “Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”25
Bill S-7 adds three new provisions regarding the capacity of individuals to marry. Further, in clause 5, it modernizes the English text related to court orders declaring a marriage null, rendering its effect closer to that of the French version. Part 2 of Bill S-7 comes into force on the day the bill receives Royal Assent.
The Constitution Act, 186726 created jurisdiction for the provinces to legislate the solemnization of marriages under section 92(12). However, Parliament has legislative competence in respect of the capacity to marry under the power “Marriage and Divorce” at section 91(26), as confirmed by the Supreme Court of Canada27 in 2004.
New section 2.1 of the Civil Marriage Act codifies the required consent for marriage, specifying that it must be “free” and “enlightened.” These are the same requirements used in relation to the consent necessary for civil unions in Québec,28 and they have been relied upon in court decisions in the common law provinces.
Bill S-7 sets a national minimum age requirement for marriage. New section 2.2 of the Civil Marriage Act prohibits any marriage between individuals under the age of 16 years. No exception to this requirement is provided. Provinces and territories may set out additional requirements for marriage between the ages of 16 and the age of majority (18 or 19), such as parental consent or a court order if parental consent cannot be obtained. Bill S-7 may have the effect of prohibiting marriages in which one of the parties is under the age of 16 in situations where it is currently allowed, such as marriage with a judge’s consent and, in some instances, when a medical certificate has established pregnancy.29
Bill S-7 emphasizes that parties are free to marry only once a previous marriage – or as new section 2.3 of the Civil Marriage Act states, “every previous marriage” – has been dissolved by death or divorce, or declared null by a court order.
Section 150.1 of the Code provides rules with respect to consent to various sexual offences against minors.30 The general rule is that the consent of an individual who is under age 16 or 18, depending on the offence in question, is not a defence. Exceptions are outlined in sections 150.1(2) and 150.1(3).
Section 150.1(2.1)(b) outlines an exception to this general rule for certain offences1 if the complainant is 14 or 15 years of age but the accused and the complainant are married.
Clause 6 of Bill S-7 removes this exception in line with the changes to the Civil Marriage Act outlined above, since it would no longer be possible to validly marry before the age of 16. However, the exception is maintained for those who are married “immediately before the day on which this subsection comes into force.”
Clause 7 of Bill S-7 limits the availability of the defence of provocation to those situations in which the victim’s conduct constituted an indictable offence32 under the Code that is punishable by five years or more in prison. As such, a wrongful act or insult would no longer be sufficient to assist in establishing a defence of provocation.
Bill S-7 adds two new indictable offences to the Code that make it illegal to celebrate, aid or participate in a marriage knowing that one of the parties is marrying against his or her will (new section 293.1) or knowing that one of the parties to the marriage is under the age of 16 (new section 293.2). The maximum penalty for these offences is five years’ imprisonment.
Section 273.3 of the Code prohibits anyone from taking a person under the age of 16 or 18 (depending on the offence) who is ordinarily resident in Canada outside of the country with the intent to commit acts that would constitute one of a number of listed (primarily sexual) offences if they occurred in Canada. It is a hybrid offence that may be prosecuted by way of indictment with a maximum term of imprisonment of five years or by summary conviction.
Clause 8 adds the two new offences regarding celebrating forced or underage marriage to the list of offences in section 273.3 (new section 273.3(1)(d)). Clause 8 thus makes it illegal to take a resident of Canada who is under the age of 18 outside of Canada with the intention of forcing him or her to marry, or to take such a resident who is under the age of 16 to be married overseas, even if the young person in question consents.
The Code currently provides for different types of peace bonds33 for different situations.34 Clause 11 of Bill S-7 introduces a new peace bond for situations in which a person fears on reasonable grounds that another person will commit one of the three new offences listed above (involvement in forced marriage or marriage under the age of 16 or seeking to remove a child from Canada for those purposes).
If he or she is satisfied by the evidence that the informant (the person who requested the order) has reasonable grounds for the fear, a provincial court judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for up to 12 months (new section 810.02(3)). If the defendant has been previously convicted of one of the three new offences outlined above, the period of the recognizance can be extended to a maximum of two years (new section 810.02(4)). Failure or refusal to enter into a recognizance can result in a maximum penalty of 12 months’ imprisonment (new section 810.02(5)).
The judge may include any reasonable conditions in the order that he or she considers desirable to ensure the good conduct of the defendant. The new section 810.02(6) outlines a number of possible conditions:
The judge must also consider whether a weapons prohibition would be appropriate as part of the order (new sections 810.02(7) and (8)) and may vary the conditions upon application from the informant or the defendant (new section 810.02(9)).
Anyone who breaches such an order may face up to two years in prison on indictment or punishment on summary conviction (section 811).
The amendments to the Youth Criminal Justice Act35 provide for a youth justice court to have jurisdiction to make an order with respect to fear of forced marriage or marriage under 16 years of age in cases where the person to be subject to such an order is a minor (clause 14).
The amendments to the Code in Part 3 of the bill and consequential amendments to other Acts will come into force on a day to be fixed by order of the Governor in Council.
The Standing Senate Committee on Human Rights studied Bill S-7 and reported back to the Senate with observations.36 Observations carry no legal weight, but they may be adopted by a committee in order to indicate to the Senate and the Government some of the issues of concern to the committee.
In the case of Bill S-7, the committee suggested in its observations that legislation should be only one component of Canada’s approach to dealing with forced and early marriage, as well as polygamy. Specifically, the committee observed that all people living in Canada, regardless of gender, would benefit from culturally appropriate public awareness campaigns adapted to their age group which explain Canadian values and laws with respect to gender equality, family violence and harmful practices.
Further, the committee observed that people (including teachers and police) who work with the public would benefit from additional culturally appropriate education and training concerning the different types of family violence and harmful practices that exist and ways to respond effectively. It also urged that culturally appropriate services be provided to victims, so that those who do come forward are well supported.
Finally, the committee suggested a number of ways to implement and enforce the new provision regarding polygamy in the immigration context.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
(10 MB, 58 pages), South Asian Legal Clinic of Ontario, Toronto, August 2013, p. 9. As the authors note, officials from the Department of Foreign Affairs and International Trade advised that cases of forced marriage might not have been captured in the data they provided, because many consular officers are unaware of forced marriage or may have grouped cases of forced marriage under other categories. [ Return to text ] (162 kB, 5 pages) News release, 13 August 2014. [ Return to text ] (720 kB, 56 pages). [ Return to text ] (125 kB, 6 pages) Demographic Yearbook 2012 (see footnote 6 about Canada). Regarding the physician’s note, see, for example, s. 17 of Alberta’s Marriage Act, RSA 2000, c. M-5. [ Return to text ]© Library of Parliament