METRAC Action on Violence
STATEMENT on Bill S-7
Regarding THE EFFECTS ON VULNERABLE WOMEN AND GIRLS of the new
amendments under
Bill S-7: The Zero Tolerance for Barbaric Cultural Practices Act
Introduction
The federal government has passed Bill S-7 the “Zero Tolerance for Barbaric Cultural
Practices Act”. The stated purpose of the Bill’s legislative changes is to provide
protection to women and girls from specific experiences, grouped under the title
“Barbaric Cultural Practices”1.
METRAC Action on Violence, a non-profit, community-based organization that works to
prevent violence and abuse of women and youth,has grave concerns that virtually all of
the legal changes ushered in under Bill S-7 will endanger many women and girls by
increasing the barriers that they face when trying to escape violence.
In addition, METRAC believes that by focusing on a set of practices and labeling them
as "cultural", the law now perpetuates stereotypes about immigrant and/or racialized
communities. METRAC views this narrow focus on “culture” at the root of violence
against women, as an additional barrier to safety for women and girls in immigrant
and/or racialized communities. This narrow focus also impacts all women and youth
affected by violence, by obscuring the much broader issue of gender-based violence
that continues to occur and must be prevented in all communities in Canada.
METRAC is concerned that the changes to immigration, criminal and marriage
laws under Bill S-7 will put women and girls who need protection from the
practices of polygamy, forced and underage marriage in a situation that traps
them in abusive circumstances and exposes them to greater risks of violence.
Background on Bill S-7
On November 5, 2014, the federal government introduced Bill S-7, the “Zero Tolerance
for Barbaric Cultural Practices Act” in the Senate. The Bill makes amendments to three
1
"Zero Tolerance for Barbaric Cultural Practices Act: An Overview," Government of Canada Backgrounder,
November 5, 2014 http://news.gc.ca/web/article-en.do?nid=900339
main pieces of legislation: the Immigration and Refugee Protection Act (IRPA)2, the Civil
Marriage Act 3and the Criminal Code4. The changes to these laws aim to prevent four
social practices, generally described as polygamy, underage marriage, forced marriage
and “honour”-related violence.
On December 11, 2014, the Standing Senate Committee on Human Rights
recommended passing the Bill without amendment, but with observations, including:

“All people living in Canada, regardless of gender, would benefit from culturally
appropriate public awareness campaigns…which explain Canadian values and
laws with respect to gender equality, family violence and harmful practices”

“Service providers such as police, teachers and social workers would benefit
from additional culturally appropriate education and training concerning the
different types of family violence and harmful practices that exist (e.g. forced and
underage marriage, polygamy and murder) and how to respond effectively”

“adequate, and culturally appropriate help, supports and programs are necessary
to facilitate suitable responses from public authorities where family violence or
harmful practices take place”5
On May 12, 2015, the House of Commons Standing Committee on Citizenship and
Immigration adopted the Bill without amendment.
On June 16, 2015, a majority of 185 members in the House of Commons voted to pass
the Bill, including 153 Conservatives, 29 Liberals, and 3 Independent members. 86
NDP, Liberal, Independent and Green Party members opposed the Bill.
The Bill, sponsored by Minister of Citizenship and Immigration Chris Alexander,
received Royal Assent on June 18, 2015. The full set of amendments in the Bill will go
into effect on a later date.
The Canadian Context of Violence Against Women
Violence against women happens in all communities in Canada and around the world.
The World Health Organization estimates that 23% of women in North America
experience physical or sexual violence. In Canada, on average, every six days a
woman in Canada is killed by her intimate partner6. In Canada, 45% of all those
2
S.C. 2001, c. 27
S.C. 2005, c. 33
4
R.S.C., 1985, c. C-46
5
Report of the Standing Senate Committee on Human Rights (Dec. 11, 2014)
http://www.parl.gc.ca/Content/SEN/Committee/412/ridr/rep/rep10dec14-e.html
6
http://www.canadianwomen.org/facts-about-violence
3
2
accused of victimizing women were intimate partners, 27% were acquaintances or
friends, 16% were strangers, and 12% were non-spousal family members7. Women face
many barriers to reporting violence and seeking help from the justice system, including:
fear of retribution or backlash; fear of the justice system; limited financial resources; lack
of access to legal information; lack of knowledge about the justice system, age,
disability, racial discrimination, and risks to immigration status.8
Problematic Elements of Bill S-7
METRAC has specific concerns and comments about the following elements of Bill S-7:
1. New inadmissibility provisions in immigration law for polygamy will increase the
risk of deporting women and children, and likely deter women in unwanted or
abusive polygamous relationships from seeking help.
2. The new national standard which sets the minimum age for marriage at 16 years
and adds a requirement for “free and enlightened consent”, does little to prevent
forced or underage marriage, sets the minimum age lower than statutes in every
province and territory other than Quebec, and is inconsistent with the United
Nations position to prevent forced and underage marriage.
3. New criminal offences for forced and underage marriage aimed at family and
community members will likely deter women and girls from seeking help to leave
and trap them in an unwanted or abusive marriage.
4. The new Peace Bond to prevent forced and underage marriage risks putting
vulnerable women and girls through a process that may expose them to further
risk from the subject of the Peace Bond.
5. Narrowing the Criminal Code defense of provocation will not affect cases
characterized as “honour”-related murder, but may limit the availability of the
defence to abused women.
6. The focus of the Bill on “culture” as the root of violence against women
perpetuates negative stereotypes about certain communities in Canada,
increases barriers to safety among women in those communities, and distracts
from the issue of violence against women in all communities in Canada.
7
Measuring Violence Against Women: Statistical Trends, Statistics Canada (2013)
The Facts about Violence Against Women, Canadian Women's Foundation http://www.canadianwomen.org/factsabout-violence
8
3
1. New inadmissibility provisions in immigration law for polygamy will increase
the risk of deporting women and children, and likely deter women in unwanted or
abusive polygamous relationships from seeking help.
Before Bill S-7
In Canada, polygamy is a criminal offence9, and all partners in a polygamous marital
arrangement10 may be found guilty of polygamy, and face up to five years in prison.
Before Bill S-7, for people from outside of Canada who applied to become a Permanent
Resident in Canada, immigration law required them to declare their marital status. An
applicant who had multiple spouses could only be admitted with a single spouse, and
had to demonstrate that the marriage was monogamous to the satisfaction of a
Citizenship and Immigration Canada official11.
Once in Canada, a newcomer who is found to have misrepresented information on an
application to enter Canada or become a Permanent Resident may be declared
inadmissible and deported12.
New laws
The changes to the Immigration and Refugee Protection Act under Bill S-7 regarding
polygamy will not increase criminal penalties for the practice of polygamy in Canada.
However, in addition to a criminal penalty, and possible inadmissibility related to a
criminal conviction or misrepresentation in an immigration application, now there will
also be a new penalty under immigration law for the practice of polygamy, leading to
inadmissibility and deportation.
The changes to immigration law regarding polygamy add a new ground of
inadmissibility to Canada, specifically affecting Permanent Residents in Canada. The
new rules therefore have a targeted effect on immigrants coming to and living in
Canada.
An immigration officer can find a person applying for Permanent Residence is
inadmissible for practicing polygamy if they “are or will be practicing polygamy with a
person who is or will be physically present in Canada at the same time” as the
applicant. As a result, residence in Canada will be denied.
For a Permanent Resident who already has status in Canada, if it is determined that he
or she is “or will be practicing polygamy with a person who is or will be physically
9
Criminal Code, s. 293
Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (CanLII)
11
"Polygamous Marriages," OP2 - Processing Members of the Family Class, s. 13.2. Citizenship and Immigration
Canada Operational Manual http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf
12
IRPA, ss. 40 (1)(a) and (d); Citizenship Act, ss. 10(1) and (2)
10
4
present in Canada at the same time”, that person may be found inadmissible and
deported, even if there is no criminal conviction or the person did not lie about their
polygamous status in their application.
Under these changes, it will be easier to find that a person is practicing polygamy and
subject to deportation, because the standard of proof under immigration law is lower
than the standard needed to convict a person for practicing polygamy under criminal
law.
Under Canadian criminal law, a person accused of a crime is innocent until proven
guilty, and the state must prove the guilt of a person “beyond a reasonable doubt”. In
contrast, inadmissibility under immigration law is determined by “facts for which there
are reasonable grounds to believe they have occurred, are occurring or may occur,”13 or
on the “balance of probabilities.” Both “reasonable grounds to believe” and “balance of
probabilities” are easier to prove than “beyond a reasonable doubt.”
The changes to immigration law under Bill S-7 will likely lead to an increase in
inadmissibility and deportation for practicing polygamy, based on less evidence than
would be required under the criminal law.
Implications of the proposed polygamy amendments for vulnerable women and
girls
a) The new polygamy restrictions in immigration will harm women
Higher rates of deportation for the practice of polygamy will have a negative impact on
immigrant women and their children, both directly through deportation, as well as
indirectly through the loss of status of their sponsoring spouse, and the resulting loss of
their own immigration status or increased risk of poverty in Canada.
Women and girls may be involuntarily involved in polygamous relationships, perhaps
because their husband unilaterally chooses to enter another marital relationship, or
perhaps because social options, expectations and pressures coerce a woman or girl
into a polygamous relationship. Neither the criminal law nor the new immigration law are
drafted to consider the context of women’s potential oppression and/or abuse, when
subjecting women to criminal penalty and deportation.
In addition, if immigrant women are not directly subjected to criminal or immigration
sanctions, they may be indirectly impacted by the deportation of their sponsoring
spouse. If a polygamous husband is found inadmissible, then the wife he has sponsored
will also be subject to loss of status and deportation, unless she is able to successfully
apply for alternate status. These women will likely face many barriers to successfully
being granted alternate status, including: financial dependence/lack of financial
13
IRPA, s. 33
5
resources, language barriers, lack of knowledge of immigration law and options, lack of
access to legal advice or representation, and lack of understanding of the legal system.
If immigrant women are deported from Canada, their dependent children will also likely
face deportation. Otherwise, if their children have the right to stay in Canada as
Canadian citizens, such children may face forced separation from their mothers.
Because of the high risk of deportation for a woman and her spouse, women who want
to seek support in Canada to leave an involuntary or abusive polygamous relationship
will likely be reluctant to come forward, for fear of exposing themselves and their
children to the risk of deportation. If women feel trapped in abusive marriages, there are
impacts on their own health and safety as well as to the health and safety of their
children. Such conditions also increase the risk of child protection involvement, and
possible separation of women from their children.
If women who do come forward to seek help to leave a polygamous relationship are
deported with their spouses, they will lose any potential access to support in Canada, to
help them leave the unwanted or abusive relationship.
b) Sponsored spouses who are Conditional Permanent Residents will be especially
vulnerable to being trapping in an involuntary polygamous and/or abusive
relationship
Women who are Conditional Permanent Residents are particularly vulnerable to abuse
by their sponsoring spouse. Under current immigration law, sponsored partners in
relationships of two years or less and without children at the time of the sponsorship
application may be admitted to Canada as Conditional Permanent Residents. They are
required to live with their spouse in a marriage-like relationship for two years after
receiving their Conditional Permanent Resident status in order to become Permanent
Residents without condition. A woman who can prove that she left the relationship due
to abuse or neglect during the conditional period may be granted an exception to the
mandatory two-year cohabitation rule. However, women face many barriers to
successfully using the exception, including financial dependence/lack of financial
resources, language barriers, lack of knowledge of immigration law and options, lack of
access to legal advice or representation, and lack of understanding of the legal system.
The new polygamy provision introduced under Bill S-7 will make the abuse exception
even harder to access. If asking for the exception leads to an investigation that finds a
woman or her sponsoring spouse inadmissible for polygamy, the new law does not say
whether the exception for abuse will apply to exempt the woman from inadmissibility for
polygamy. Further, even if a woman is granted an exception for abuse in a polygamous
relationship, she is still vulnerable to losing her sponsor’s required financial support, if
he is found inadmissible for polygamy and deported. Conditional Permanent Residents
are among the most vulnerable groups of immigrant women and already at high risk of
violence. The new polygamy law will create further barriers to escaping polygamy
6
and/or violence, and their children will be at increased risk of remaining trapped in
family abuse with them.
Summary
The new immigration laws related to polygamy will likely have broad negative impacts
on women in Canada by:


increasing the risk of deportation of immigrant women and their children;
trapping women in involuntary and possibly abusive polygamous relationships to
protect their immigration status and the status of their children in Canada;
The potential effects on the children of these women will be a greater risk of
deportation, or continued exposure to abusive polygamous family life, and separation
from parents, either as a result of deportation of their parents or possible child
protection intervention in abusive homes.
2. The new national standard which sets the minimum age for marriage at 16
years and adds a requirement for “free and enlightened consent”, does little to
prevent forced or underage marriage, sets the minimum age lower than statutes
in every province and territory other than Quebec, and is inconsistent with the
United Nations position to prevent forced and underage marriage.
Before Bill S-7
The federal government has the legal jurisdiction over divorce, as well as who has the
capacity to legally marry.The federal Civil Marriage Act defines civil marriage as “the
lawful union of two persons to the exclusion of all others”14 including both opposite and
same sex partners.
The provinces and territories have jurisdiction over the procedures that must be
followed to become legally married. Before Bill S-7 was passed, each province had a
minimum age to marry, and allowed for some exceptions. In every province and territory
other than Quebec, the minimum age to marry was either 18 or 19. In Ontario, the
Marriage Act15 set the minimum age to marry at 18 years, with the exception that a
person 16 or 17 could marry with the consent of both parents, a legal guardian, or the
Court. For a marriage to be legally valid in Ontario, a person who has already been
married must have proof that all previous marriages have legally ended.
Under the Criminal Code, it is a criminal offence to knowingly perform a marriage that is
not in accordance with the law16. It is also an offence to solemnize or pretend to
14
S.C. 2005, c. 33, s. 2
R.S.O. 1990, CHAPTER M.3
16
Criminal Code, s. 295
15
7
solemnize a marriage without having legal authority, or to knowingly get an
unauthorized person to perform a marriage17.
New law:
Bill S-7 makes additions to the federal Civil Marriage Act that will apply across Canada:
i)
ii)
iii)
the minimum age to legally marry is 16 years;
two people must give free and enlightened consent to be legally married; and,
a person cannot legally marry until every previous marriage of that person
has ended by death, divorce or a court order.
The criminal offence for knowingly performing a marriage that is not in accordance with
the law will now apply to both provincial and federal marriage laws.
Implications of the proposed new marriage law for vulnerable women and girls
METRAC believes that lowering the new national minimum age to marry to 16 years is a
regressive step, as the laws across Canada, outside of Quebec, had set the minimum
legal age to marry at 18 or 19. We are concerned that the new law will continue to
expose young girls to possible forced marriage, and may increase the incidence of the
forced marriage of girls age 16 and 17, by sending a message that the public policy in
Canada supports the marriage of girls as low as age 16.
The new federal law states that marriage requires the “free and enlightened consent” of
the two people who are marrying. However, we question whether this provides any
meaningful protection to a 16 or 17-year-old girl, and whether a young girl being
pressured by influential family or community members can provide genuine consent,
free from influence, concerning the many legal, financial and social implications of
marriage. In addition to emotional influence, young girls are often vulnerable as a result
of financial dependence and needed social supports. Further, the meaning of
“enlightened” in this context is not clear, and subject to personal, cultural and
stereotypical interpretation and variation. The fact that the phrase, “free and fully
informed” was not used, suggests a different Parliamentary intent.
Our concerns are supported by international legal statements that deal with the rights of
women and girls in the context of marriage, such as the United Nations Committee on
the Rights of the Child, General Comment 18 (9UNCRC GC 18), which has been
ratified by Canada18. In this document, the United Nations sets the minimum marrying
17
Criminal Code, s. 294
United Nations Committee on the Rights of the Child, General Comment 18 (UNCRC GC 18):
“19.Child marriage, also referred to as early marriage, is any marriage where at least one of the parties is under 18
years of age. The overwhelming majority of child marriages, both formal and informal, involve girls, although at times
their spouses are also under the age of 18. A child marriage is considered as a form of forced marriage given that
one or both parties have not expressed their full, free and informed consent. As a matter of respecting the child’s
evolving capacities and autonomy in making decisions that affect her or his life, in exceptional circumstances a
18
8
age at 18 years, with “full, free and informed consent”. The new national minimum age
that permits legal marriage at the age of 16 with free and enlightened consent is
inconsistent with “best practice” in the international community that aims to protect the
rights of women and girls against forced and underage marriage19.
Summary
The new federal law that allows girls as young as 16 to marry puts young women at risk
of forced marriage. This is a step backwards from the majority of provincial and
territorial marriage statutes that set the legal age to marry, in the general case, at either
18 or 19 years. This change in law is a statement that Canadian policy considers the
marriage of girls as young as 16 to be appropriate. Furthermore, the new requirement
for free and enlightened consent is vague and may be influenced by personal, cultural
and regional differences. It is unlikely to protect vulnerable girls from being forced into
unwanted marriages. The new marriage law is out-of-step with the international
community and legal documents that aim to protect women and girls from forced and
underage marriage.
3. New criminal offences for forced and underage marriage aimed at family and
community members will likely deter women and girls from seeking help to leave
and trap them in an unwanted or abusive marriage.
Before Bill S-7
Before Bill S-7, there were already criminal offences that could apply in circumstances
where there was a threat or assault related to a forced or underage marriage, such as
actual or threatened physical or sexual assault20, kidnapping21, and forced
confinement22.
Further, the Criminal Code states that it is a crime to do anything to remove a person
who is living in Canada, with the intention of committing outside of Canada such
criminal offences as:

sexual touching, inviting a person to touch someone else sexually, and exposure
to sexual displays, if the person is under age 16 years;
marriage of a mature, capable child below the age of 18 may be allowed provided that the child is at least 16 years
old and that such decisions are made by a judge based on legitimate exceptional grounds defined by law and on the
evidence of maturity without deference to cultures and traditions.”
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f18&Lang=en
19
Brief submitted by UNICEF Canada to the House of Commons committee studying Bill S-7, p. 9
http://www.unicef.ca/sites/default/files/imce_uploads/bill_s-7_-_final_-_unicef_canada_submission_feb_2015.pdf
20
Criminal Code, ss. 151 (sexual touching a person under 16); 152 (inviting a person under 16 to sexually touch
another person); 173(2) (exposing genitals to a person under 16); (sexual exploitation of a person 16 or 17 years
through abuse of trust or authority); 271 (sexual assault)
21
Criminal Code, s. 279(1)
22
Criminal Code, s. 279(2)
9


sexual exploitation by a person in a position of trust or authority, if the person is
age 16 or 17 years; and
assault, sexual assault, or procuring a person for sex, if the person is under age
18 years23.
Additionally, for all offences under the Criminal Code there are related ancillary offences
for aiding and abetting the principal offence24, and for comforting or assisting a person
to escape prosecution, as an accessory after the fact25.
New laws:
Bill S-7 makes changes to the Criminal Code that are related to the new federal
marriage law, in an attempt to prevent the marriage of youth under age 16, or marriage
without “free and enlightened consent”. These new Criminal Code sections add to the
existing offences that could apply to specific threats and assaults related to forced or
underage marriage.
The two new criminal offences specifically related to forced and underage marriage are:
i)
everyone who “celebrates, aids or participates” in a marriage ceremony
and knows that one of the persons is being married against their will is
liable to a prison term up to 5 years; and,
ii)
everyone who “celebrates, aids or participates” in a marriage ceremony
and knows that one of the persons being married is under the age of 16
years is liable to a prison term up to 5 years.
Bill S-7 also adds to the criminal offences for doing anything to remove a young person
from Canada, with the intention of committing specific offences outside of Canada. The
new provisions make it a criminal offence to remove a person for the purpose of
celebrating, aiding or participating in a marriage ceremony while knowing the person
being married is under age 16, or knowing a person under age 18 is being married
against their will.
Connected to these new offences, there are also penalties for being an accessory to the
main offence, including such acts as aiding, comforting or assisting a family member
who celebrates or participates in a forced or underage marriage.
Overbreadth in the enforcement of the new criminal laws is a serious concern. The law
does not define what “forced” marriage is or how to determine that a person is marrying
“against their will”. As raised in the discussion about the new marriage law, it is not clear
what “full and enlightened consent” to marry entails, and the term “enlightened” is open
23
Criminal Code, s. 273.3
Criminal Code, s. 21(1)
25
Criminal Code, s. 23(1)
24
10
to varying definitions influenced by personal and cultural beliefs. It is also unclear how
to determine that a person “knows” another person is unwilling to marry. There is
potential confusion regarding the distinction between an arranged marriage, pressure to
marry, and forced marriage without consent.There may be free consent to marry,
regardless of family involvement in and encouragement of a marital arrangement26.
This vagueness and uncertainty raises the potential for overzealous and unwarranted
criminalization in a variety of complex and nuanced social circumstances.
These changes to the Criminal Code potentially have very far-reaching impact
criminalizing whole families and communities, putting them at risk of conviction and
imprisonment, and possibly deportation, because in many cases, a permanent resident
who is convicted of a criminal offence can be found inadmissible and deported from
Canada.
Implications of the new Criminal Code offences regarding celebrating, aiding or
participating in a forced or underage marriage for vulnerable women and girls
a) Victims of forced or underage marriages will not come forward to seek help out of
fear of criminal sanctions against their family members
The South Asian Legal Clinic of Ontario (SALCO) studied and reported on forced
marriage in Ontario and Quebec. Through community consultation, interviews and
research, SALCO documented that women and girls who are forced against their will
into marriage are at risk of psychological and physical harm27. The SALCO Report also
found that a majority of women in these forced marriage situations said they would not
report concerns about forced marriage if it would expose their family members to
criminal sanctions28.
The criminal law pre-Bill S-7 was already perceived as a threat and created a barrier to
reporting forced marriages29. The law that now may put virtually every family and
community member at risk of imprisonment for participating in or celebrating a forced or
underage marriage will likely intensify the reluctance to report and thereby trap girls and
women in forced marriages. For this reason, the SALCO Report expressly
recommended against the introduction of further Criminal Code sanctions related to
forced marriage, and instead, advocated for safe, effective and available support
services to assist vulnerable women and girls to come forward and have appropriate
options to escape forced marriage.
26
“Who / If / When to Marry: The Incidence of Forced Marriage in Ontario,” South Asian Legal Clinic of Ontario, pg. 4
[“SALCO Report”] http://www.salc.on.ca/SALCO%20-%20Who,%20If,%20When%20to%20Marry%20%20The%20Incidence%20of%20Forced%20Marriage%20in%20Ontario%20(Sep%202013).pdf
27
Ibid. p. 17. Survey results of the SALCO Report showed that 59% of women forced into marriage faced physical
violence; 26% faced sexual violence; and “mental or social pressure” was a form of violence experienced in 75% of
cases.
28
Ibid. p. 28; www.salc.on.ca/No%20to%20Criminalization%20of%20Forced%20Marriages.pdf
29
www.salc.on.ca/No%20to%20Criminalization%20of%20Forced%20Marriages.pdf
11
b) Criminalization of forced or underage marriage will potentially victimize other
vulnerable women who can’t refuse to participate
The very broad new sanctions also risk criminalizing women relatives of girls being
forced into marriage. The federal government has said that activity that would constitute
a crime under these new Criminal Code sections could include “transporting an
unwilling or underage daughter to the ceremony or acting as a legal witness”30. We are
concerned that other women in a family and community that engages in forced marriage
may themselves be vulnerable to control, abuse, or punishment and therefore not able
to refuse or withdraw from celebrating and participating in a marriage ceremony. Not
only would these vulnerable women face the risk of imprisonment, but also related
negative impacts of criminalization, including: restricted custody or access to children;
intervention by child protection agencies; and possible deportation for a criminal
conviction, if they are a Permanent Resident.
c) Criminal sanctions threaten to undermine potential support systems for victims of
forced or underage marriage
The SALCO Report identifies that young women between the ages of 19 and 24 years
are most vulnerable to forced marriage, followed closely by those between 16 and 18
years, because of their age, education level, and financial dependence.31 Added to their
fear of criminalizing family members, these very vulnerable victims are least likely to
have the financial and personal independence to find safe alternate housing and a
source of financial support, if their families are criminalized and possibly deported.
Women community members may be the first or only trusted person a victim of forced
or underage marriage may approach for help. However, if women relatives and
community members are criminalized for participating in or celebrating a forced or
underage marriage (or for aiding or abetting someone who does), there is the further
risk that these women will be removed from the community, lose custody or contact with
vulnerable women, or possibly be deported following a criminal conviction.
The effects of the new laws risk further isolating and victimizing the most vulnerable
girls and women facing forced marriage.
Both the SALCO Report32 and the observations of the Senate Committee that studied
Bill S-733 discuss the need for additional resources and social supports to provide
practical options for women and girls to escape unwanted and abusive marriages.
30
Supra, note 12.
Supra, note 26, p. 10.
32
Supra, note 26, pp. 20-21.
33
Supra, note 5.
31
12
Summary
The new criminal sanctions that aim to prevent forced and underage marriage risk
increasing harm to vulnerable women and girls. They will likely drive victims of forced
and underage marriage further underground, for fear of criminalizing their family
members. Other vulnerable or abused women in the community may not be able to
refuse to participate in a marriage ceremony, and will be at risk of conviction and
penalty. Existing community supports for women at risk may be undermined. The
potential effects of the new criminal laws are to further expose vulnerable girls and
women to abuse or criminal sanctions, and will increase the need for additional
resources and social supports to provide practical options for women and girls to
escape unwanted and abusive marriages.
4. The new Peace Bond to prevent forced and underage marriage risks putting
vulnerable women and girls through a process that may expose them to further
risk from the subject of the Peace Bond.
Before Bill S-7
Criminal Code section 810 allows any person with a reasonable fear that another
person will hurt them, their partner or property may request the court to issue a
recognizance to keep the peace, commonly referred to as a Peace Bond. A Peace
Bond is a court order that can last for up to one year, which requires the subject of the
order to “be of good behaviour and keep the peace”, and may also set specific
conditions on a person’s behaviour, including, for example:



Keeping a specified distance away from the home and other places where the
person requesting the Peace Bond may be;
Having no contact with the person requesting the Peace Bond, directly or
through other people or other forms of communication, such as phone, email,
letter;
Restricting the subject of the Peace Bond to have access to firearms or other
weapons.
A Peace Bond under s. 810.1 is specifically for fears related to sexual assault and other
sexual offences against a person under 16 years of age, such as:


sexual touching a person under 16, or an invitation for a person under 16 to
sexually touch someone else, or exposing one’s genitals to a person under age
16;
a parent or guardian procuring a person under age 18 to have sex with another
person.
A Peace Bond under s. 810.1 may be requested by any person who has a reasonable
fear that another person will commit one of these sexual offences. If the subject of a
13
Peace Bond under s. 810.1 has a previous conviction for a sexual offence against a
person under age 16, the Peace Bond may be ordered to last for up to two years.
Some additional conditions that may be included in a Peace Bond ordered under s.
810.1 are:






no contact with a person under age 16 unless with appropriate supervision;
no use of the internet;
participate in a treatment program;
stay within a specific geographic area;
stay home at specified times;
regularly report to police.
The court procedure to obtain a s. 810 Peace Bond involves giving the subject of the
requested Peace Bond notice of the request and the opportunity to reply. That person
as well as the person requesting the Peace Bond must attend in court together to
provide evidence that will assist the court in its decision. Where the Peace Bond is for
fear of sexual offences under s. 810.1, the court may order the parties to appear
together in court.
If the subject of the requested court order refuses to enter into the Peace Bond, the
court may sentence that person to a prison term up to 12 months. A person subject to a
Peace Bond who breaches any condition of the order, is subject to a criminal charge,
and if convicted, may be sentenced to a prison term up to 24 months.
In addition to a getting a Peace Bond, a person who has reason to feel afraid of another
person because of unwanted contact may lay a charge of criminal harassment, also
known as stalking34.
New law
Bill S-7 has added new kind of Peace Bond to the Criminal Code, which specifically
addresses the threat of a forced or underage marriage. This new Peace Bond allows a
person to get a court order to limit another person’s behaviour if there is a reasonable
fear they will commit the offence of celebrating, aiding or participating in a forced or
underage marriage, or the offence of trying to remove a person from Canada for the
purpose of a forced or underage marriage.
The new Peace Bond can last up to one year, or up to two years if the subject of the
Peace Bond has already been convicted of a forced or underage marriage offence.
Some possible restrictions on the subject’s behaviour that can be ordered include:

34
preventing a person from making arrangements for the forced or underage
marriage of another person;
Criminal Code, s. 264(1)
14





preventing a person from taking steps to remove another person from Canada for
a forced or underage marriage;
ordering a person to give their passport to an authority, so that it can’t be used
for travel;
limiting contact with specified people;
participating in a family violence counselling program;
prohibiting the possession of firearms.
Implications of the new Peace Bond aimed at preventing a forced or underage
marriage for vulnerable women and girls
The use of Peace Bonds in the context of family violence raises significant concerns for
women’s safety. The process for obtaining a Peace Bond where there is fear of a forced
or underage marriage may require a person to appear in court with the person who is
considered a threat. There is no involvement of Crown Counsel or any other lawyer to
assist or represent the woman who feels afraid, unless she pays for a lawyer herself.
The person who is the subject of the requested Peace Bond gets notice of the
application and the chance to respond. That person may be living in the same
household or community with the applicant.
This process also creates a potentially terrifying confrontation with an abusive family
member, who may be represented by counsel in an adversarial judicial process. In
addition, because there may be some time between the application and the issuance of
a Peace Bond, the situation may significantly increase the risk of harm to a vulnerable
woman. Studies indicate that where there is a history of abuse, the risk of violence
increases at times when the survivor challenges the abuser, by attempting to seek help,
or to end contact with the abuser35.
Anyone can apply to the court for a Peace Bond to restrict a person’s behaviour, if the
applicant has reasonable grounds to fear that person will celebrate, aid or participate in
a forced or underage marriage. Therefore a family or community member could apply
on behalf of a woman, if they believe she is vulnerable to a forced or underage
marriage. This has the potential to create or increase a woman’s risk of harm, because
of the process described above. In addition, the woman may not have prepared for or
even wanted to initiate the Peace Bond process, because she may not feel at risk, or
she may have chosen against applying for a Peace Bond, because of the criminalization
of the subject of the Peace Bond, and possible immigration consequences; in fear of
retribution or heightened violence; or because of concern about loss of financial support
from that person.
Peace Bonds are not likely to be an option chosen by women who are afraid of forced
or underage marriage, because, as studies indicate, they are unlikely to risk
35
Measuring Violence Against Women: Statistical Trends 2006,” Statistics Canada (2006)
http://www.unece.org/fileadmin/DAM/stats/gender/vaw/surveys/Canada/2006_Publication_VAW.pdf
15
criminalizing family and community members and risking possible deportation from a
criminal conviction. However, for women and girls who do choose to apply for a Peace
Bond, they may be at heightened risk of harm as a result of the process itself, and
because of the heightened risk when survivors act to end abuse. We are concerned that
the new Peace Bond will appear to provide protection without risks, and without a full
and clear understanding of the process, vulnerable women and girls may expect more
immediate protection and safety from a Peace Bond that appears to be specifically
aimed at protecting against forced or underage marriage.
Summary
There is little advantage to a specialized Peace Bond aimed at a threat of forced or
underage marriage, as the existing Peace Bonds for fear of harm or sexual offences
against youth continue to be available. A Peace Bond that appears to be specifically
effective in preventing forced or underage marriage may give an impression of
immediate safety, when in fact, the process may put women and girls at greater risk.
5. Narrowing the Criminal Code defense of provocation will not affect cases
characterized as “honour”-related murder, but may limit the availability of the
defence to abused women.
Before Bill S-7
When a person is charged with first or second degree murder, the accused person may
raise the defence of provocation. The defence of provocation is only successful when
the accused can prove the acts causing death occurred “on the sudden” and “before
there was time for passions to cool” 36, in response to a “wrongful act or insult” by the
victim37. The accused also has to persuade the court that the actions of the victim would
be sufficient to cause an ordinary person to lose self-control.
In circumstances where it is proven that the accused caused the death of the victim, the
defence of provocation is not a complete defence that leads to acquittal. It is a partial
defence that may in appropriate circumstances consider the context of the events
leading to death, and reduce the conviction for death from murder to manslaughter, with
a resultant lower sentence.
The defence of provocation has historically been used by men accused of murdering
their wives or intimate partners. The “wrongful act or insult” has often been an act of
perceived infidelity. The defence has never, to date, been raised in Canada in a case of
so-called “honour” killing of a woman by a family member.
36
37
Criminal Code, s. 232(2) [before the Bill S-7 amendment]
Ibid.
16
In 2010, the Supreme Court of Canada expressly stated that the defence cannot be
successful in cases of killing related to family honour. The Court stated that the Criminal
Code defence of provocation must be applied in a way that is consistent with the
fundamental value of equality in the Canadian Charter of Rights and Freedoms, and
specifically rejected the use of the defence for “any form of killing based on…
inappropriate conceptualizations of ‘honour’”38.
New law
As a result of Bill S-7, the Criminal Code now adds a further restriction for when the
defense of provocation may be used. In addition to being available only in situations
where the accused has acted suddenly and provoked by acts of the victim that would
cause an ordinary person to lose self-control, the victim’s acts must also have been an
offence under the Criminal Code that is punishable by five years or more in prison.
The purpose of this amendment is to “limit the defence of provocation so that lawful
conduct by the victim that might be perceived by the accused as an insult, or offend that
person or their sense of family ‘honour’ or reputation, cannot be used to reduce murder
to manslaughter.”39
Implications of the narrowed Criminal Code defence of provocation for vulnerable
women
Abused women leave their partners an average of five times before they permanently
end the relationship40. Abuse by an intimate partner is often chronic and cumulative.
Therefore, in a relationship scarred by partner abuse where a woman loses control and
kills her abuser, the circumstances may be an appropriate case for the limited defence
of provocation. But because of the nature of intimate partner abuse, based on power,
control and vulnerability, the death of an abuser may not be provoked by a single event
or conduct, in the moment, that would constitute an offence punishable by five or more
years in prison.
Under the new, narrower criteria for the defence of provocation, a history of abuse
which in a single moment leads to a loss of control resulting in death may no longer be
relevant when raising the limited defence of provocation, if the death was not
immediately preceded by a single event or act that would be a serious criminal offence
punishable by five or more years in prison.
38
R.
v
Tran, 2010 SCC 58, para 34
Backgrounder, “Zero Tolerance for Barbaric Cultural Practices Act: An overview”, Government of Canada,
November 5, 2014.
40
Henderson, A.J.Z., Bartholomew, K. and Dutton, D.G., "He loves me: He loves me not: Attachment and separation
resolution of abused women", Journal of Family Violence, 12[2], 1997:186.
39
17
Summary
Women who are vulnerable to violence and murdered in the name of “family honour” will
not gain any benefit under the new, narrower defence of provocation, because the
Courts have already interpreted the defence narrowly in such cases, and stated that it
will not apply. However, a larger population of vulnerable women living in abusive
relationships may lose the opportunity for this limited defence. We are concerned that in
a relationship of chronic partner abuse where a woman loses control and kills her
abuser, the more limited defence of provocation will not be available because it will now
apply to fewer possible circumstances where the victim must have engaged in a
discrete and identifiable act that would constitute a serious offence under the Criminal
Code.
6. The focus of Bill S-7 on “culture” as the root of violence against women
perpetuates negative stereotypes about certain communities in Canada,
increases barriers to safety among women in those communities, and distracts
from the issue of violence against women in all communities in Canada.
The general discriminatory impact of Bill S-7
Through Bill S-7, the federal government identified certain types of gendered violence
as “barbaric” and “cultural”. As a result, the discussion around the legislative changes
aimed at the practices of polygamy, forced and underage marriage, and “honour”-based
killing has focused on particular communities, suggesting that they endorse violence
against women as an inherent component of their “culture.” The focus of the discussion
also suggests that violence against women is a practice that is imported into Canada by
outsiders, who are unable or undeserving to be part of Canadian society. We are
concerned that the effect of this initiative will be to perpetuate a stereotype that
immigrant and/or racialized communities are monolithic groups which normalize or
encourage gendered violence.
There is great diversity within communities: belief systems, traditions, and practices
along national, regional and familial lines vary, and there is no one, unified culture that
applies as a whole to one religious or ethnic group, or to one country, be it Canada or
another. If some individuals use history, culture or religion to justify violence against
women, it does not mean that those are, in fact, practices that are endorsed or
celebrated by all members of an entire community. Yet by using the term “cultural” to
describe acts of violence, the effect is to point at “other” cultures, and to obscure the
conditions that lead to violence in every culture. The effect of the changes under Bill S-7
is to advance false stereotypes about entire communities and make them more
vulnerable to social exclusion and racial discrimination, which, in turn, has very
practical, severe and direct implications for women and girls facing violence in those
communities.
18
Implications of the discriminatory impact of Bill S-7 on vulnerable women and
girls
Many immigrant women in Canada are already vulnerable due to discrimination, high
rates of financial dependency, poverty, unemployment, language barriers, and lack of
understanding of or access to legal rights41. Therefore, there is an ongoing need for
better access to resources, social supports and legal services. Women in immigrant
communities that are the subject of negative stereotypes suffer from the general
message that members of these communities are less deserving of help, support and
protection. Feminist scholar Sherene Razack has observed,“Through exclusive
emphasis on culture as the sole source of patriarchal violence, culturalist approaches
obscure the multiple factors that give rise to and sustain the violence.”42 Stereotyping
whole communities as “barbaric” and undeserving of public resources further
marginalizes the women in that community.
The focus of the Bill’s legal changes also ignores the reality that gender-based violence
is a global phenomenon and occurs in every community in Canada. No amount of
change to Canada’s criminal, immigration and marriage laws can address the root
causes of violence against women. Women fleeing violence need meaningful options to
help establish independent, safe lives for themselves and their children, that depend on
a source of income and adequate housing among other social supports and services.
Rather than focusing on social conditions that contribute to women’s vulnerability to
violence, the new changes to law focus on criminal and immigration responses that
punish specific communities through criminal responses, or deportation, or both. By
locating oppression of and violence against women as inherent to particular
communities, measures have been taken to “fix” these communities, rather than
channelling resources to understand the complexity of violence against women and
engaging with communities and service providers to provide appropriate services,
supports and safety.
Conclusion
METRAC believes there will be significant negative effects on women and girls,
resulting from the new laws introduced by Bill S-7, including:


Increased rates of criminalization of women
Increased rates of deportation of women
41
See, for example, Empowerment of Immigrant and Refugee Women who are Victims of Violence in their Intimate
Relationships, Justice Institute of British Columbia, 2007
http://bcsth.ca/sites/default/files/publications/Empowerment%20of%20Immigrant%20and%20Refugee%20Women%2
0-%20Final%20Report%20_Revised%20May08.pdf; Archana Medhekar and Ivana Vaccaro, Service Barriers for
Immigrant Women Facing Domestic Violence, The Common Room Canadian Bar Association Women Lawyers
Forum Newsletter, 2013 http://www.cba.org/CBA/conf_women/Women_Newsletters2013/barriers.aspx
42
Sherene Razack, Casting Out: The Eviction of Muslims from Western Law and Politics, University of Toronto Press,
Toronto (2008).
19





Increased vulnerability of women and girls who will stay silent about
polygamy and forced or underage marriage
Increased risk of marriage of girls as young as 16 years
Increased need, without increased resources, for social supports to help
women at risk of polygamy, forced or underage marriage and family abuse
Reduced access to the limited defence of provocation for abused women
Reinforced negative stereotypes about particular cultures and communities
that will increase discrimination and further marginalize women and girls
from those communities
20