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Bill S-7 – Zero Tolerance for

Barbaric Cultural Practices Act

CANADIAN BAR ASSOCIATION

CRIMINAL JUSTICE AND IMMIGRATION LAW SECTIONS, CHILDREN’S LAW

COMMITTEE AND SEXUAL ORIENTATION AND GENDER IDENTITY CONFERENCE

April 2015

Copyright © 2015 Canadian Bar Association

PREFACE

The Canadian Bar Association is a national association representing 36,000 jurists,

including lawyers, notaries, law teachers and students across Canada. The Association's

primary objectives include improvement in the law and in the administration of justice.

This submission was prepared by the CBA Criminal Justice and Immigration Law

Sections, Children’s Law Committee and Sexual Orientation and Gender Identity

Conference, with assistance from the Legislation and Law Reform Directorate at the

CBA office. The submission has been reviewed by the Legislation and Law Reform

Committee and approved as a public statement of the CBA.

TABLE OF CONTENTS

BILL S-7 – ZERO TOLERANCE FOR

BARBARIC CULTURAL PRACTICES ACT

I.

INTRODUCTION ............................................................... 1

A.

Rationale for Bill S-7 .................................................................. 1

B.

Short title of Bill S-7 ................................................................... 2

II.

IMMIGRATION AND REFUGEE PROTECTION ACT ....... 2

A.

Polygamous Persons Prevented from Immigrating to Canada ... 3

B.

Polygamy is Rare in Canada ..................................................... 3

C.

“Practising Polygamy” Not Clearly Defined ................................ 4

D.

Protecting Women ..................................................................... 5

E.

Protecting Children .................................................................... 6

III.

PROVOCATION DEFENCE .............................................. 7

A.

The Proposal ............................................................................. 8

B.

Murder for “Honour” ................................................................... 8

Judicial response to provocation defence .......................... 10

C.

Practical and Procedural Considerations ................................. 12

“Air of reality” assessment ................................................. 13

Procedural and evidentiary considerations ........................ 13

Burden of proof .................................................................. 14

Jury’s role .......................................................................... 14

Self defence ...................................................................... 15

IV.

CIVIL MARRIAGE ACT AMENDMENTS ........................ 15

V.

CONCLUSION ................................................................ 17

Bill S-7 – Zero Tolerance for

Barbaric Cultural Practices Act

I.

INTRODUCTION

The Canadian Bar Association (CBA) appreciates the opportunity to comment on Bill S-7, Zero

Tolerance for Barbaric Cultural Practices.1 This submission represents a collaboration of the

National Criminal Justice Section (which represents a balance of Crown and defence lawyers),

the National Immigration Law Section (representing specialists in immigration and refugee

law), the Children’s Law Committee (provides input to CBA Sections on children’s rights issues)

and the Sexual Orientation and Gender Identity Conference (raises legal issues of particular

concern to lesbian, gay, bisexual, transgendered and two-spirited people).

A. Rationale for Bill S-7

The government’s rationale for Bill S-7 is to address violence against women and children in

Canada and to protect victims of crime. Citizenship and Immigration Minister Chris Alexander

said:

With the Zero Tolerance for Barbaric Cultural Practices Act, we are strengthening our

laws to protect Canadians and newcomers to Canada from barbaric cultural

practices. We are sending a strong message to those in Canada and those who wish to

come to Canada that we will not tolerate cultural traditions in Canada that deprive

individuals of their human rights.2

The CBA supports legislation that provides effective tools to eradicate gender discrimination,

inequality and violence against women. Practices like imposing marriage on women and girls

against their will are antithetical to the values and rights enshrined in the Canadian Charter of

Rights and Freedoms, as well as international human rights instruments that Canada has

1

Canada, 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, 2nd Sess, 41st Parl, 2014 (Bill S-

7).

2

Government of Canada, “News Release: Protecting Canadians from Barbaric Cultural Practices” (5

November 2014), online: http://news.gc.ca/web/article-en.do?nid=900399.

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ratified.3 These practices cannot be condoned, whether they take place in Canada or elsewhere

in the world.

While accepting the underlying premise of the Bill, the CBA has concerns about aspects of the

Bill, notably the immigration provisions, amendments to the provocation defence under section

232 of the Criminal Code and the Bill’s actual impact on women and children. We make several

suggestions to assist the government in ensuring that the Bill will effectively accomplish the

goal of protecting women and children in Canada and internationally.

B. Short title of Bill S-7

The short title for Bill S-7 – Zero Tolerance for Barbaric Cultural Practices Act – suggests that

violence against women and children is a cultural issue limited to certain communities. This is

divisive and misleading, and oversimplifies the factors that contribute to discrimination and

violence against women and children.

In general, we recommend that short titles be used to succinctly and neutrally indicate the

Bill’s subject matter or any other Acts to be amended by the Bill (eg Criminal Code amendments

(provocation defence).

II.

IMMIGRATION AND REFUGEE PROTECTION ACT

Bill S-7 would add section 41.1 to the Immigration and Refugee Protection Act:4

41.1 (1) A permanent resident or a foreign national is inadmissible on grounds of

practising polygamy if they are or will be practising polygamy with a person who is

or will be physically present in Canada at the same time as the permanent resident or

foreign national.

(2) For the purposes of subsection (1), polygamy shall be interpreted in a manner

consistent with paragraph 293(1)(a) of the Criminal Code.5

3

The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]; Convention on

the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 13;

International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171; Organization of

American States, Inter-American Convention on the Prevention, Punishment and Eradication of Violence

against Women, 9 June 1994 (entered into force 9 June 1994); Declaration on the Elimination of Violence

against Women, GA Res 48/104, UNGAOR, 86th Sess, Supp No 49, UN Doc A/48/49 at 217.

4

Immigration and Refugee Protection Act, SC 2001, c 27.

5

Bill S-7, supra note 1, clause 2.

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of the Canadian Bar Association

The CBA supports measures to protect women and children. We question whether an

amendment to render those who “practice polygamy” inadmissible to Canada is necessary or

would advance that goal because:

• the Canadian immigration system already has mechanisms to prevent the

immigration of polygamous persons to Canada.

• evidence indicates that the practice of polygamy is rare in Canada.

6

• the legal boundaries of “practising polygamy” have not been clearly

defined by the courts and would be difficult to apply in the immigration

context.

• keeping women and children in polygamous relationships from

immigrating to Canada does not contribute to their protection.

A. Polygamous Persons Prevented from Immigrating to

Canada

Polygamy is illegal in Canada and Canada has means beyond criminalization to restrict the

immigration of polygamous families to Canada. The Immigration and Refugee Protection Act

already imposes restrictions on family class immigration that effectively prohibit multiple

spouses from being recognized:

• A foreign national seeking to become a permanent resident may have

only one spouse.

• A temporary resident who practices polygamy in their country of origin is

generally allowed to enter Canada with only one spouse.

• A permanent resident may be found criminally inadmissible for

practising polygamy if they are convicted under section 293 of the

Criminal Code and receive a term of imprisonment of more than six

months, or found inadmissible for misrepresentation if they lied about

being involved in a polygamous relationship when they became a

permanent resident.

B. Polygamy is Rare in Canada

The rationale for additional legislation to control the practice of polygamy, which does not

appear a widespread problem for Canada, is unclear.

6

See infra, at 4 and notes 8-10.

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The most comprehensive examination and legal study of the practice of polygamy in Canada

took place in the British Columbia Polygamy Reference.7 Evidence in that case showed that

polygamy is practiced in isolated fundamentalist Mormon communities in the US and Canada,

and by a “small number” of North American Muslims.8

According to one expert who testified in the case, polygamy among Muslims in Canada is

generally taboo, not only because it is illegal in Canada, but because it is considered shameful.9

These factors make it difficult to determine the extent to which polygamy is actually practiced

in North America, but we are unaware of any evidence that it is a widespread problem.10

C. “Practising Polygamy” Not Clearly Defined

Bill S-7 is unclear about when a person would be considered to be “practising polygamy” from

a legal perspective in the immigration context. The immigration provision would rely on the

Criminal Code definition, which has been interpreted in various ways.

Section 293(a) of the Criminal Code criminalizes anyone who “practises or enters into or in any

manner agrees or consents to practise or enter into a union that represents:

(i)

any form of polygamy, or

(ii)

any kind of conjugal union with more than one person at the same time whether or

not it is by law recognized as a binding form of marriage.11 (emphasis added)

The language in (ii) is broad and ambiguous and the potential for differing interpretations was

abundantly clear during the Polygamy Reference.

The court in that case outlined the federal government’s position on overseas marriages:

[935] The AG Canada submits that s. 293(1)(a)(i) prohibits the practice of entering

into multiple simultaneous marriages that are legally valid under the law where they

were celebrated. Given that it is not legally possible to marry multiple people in

Canada, this offence should be interpreted as referring to non-residents of Canada

who marry their spouses in a foreign country in accordance with its laws and then

7

Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588.

8

Ibid. at para 236.

9

Ibid. at para 426.

10

Ibid. at para 429.

11

Criminal Code, section 293(a).

Submission

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of the Canadian Bar Association

come to Canada. Upon their arrival in Canada, they are practising polygamy within

the meaning of that subsection.12

Some examples illustrate the difficulties in applying the proposed amendment in the Canadian

immigration context:

• If someone arrives in Canada alone, but is in a polygamous marriage

elsewhere in the world, is that person “practising polygamy”?

• If a person in a polygamous relationship is in Canada and a spouse “will

be” anywhere in Canada at some point in the future, the person would be

“practising polygamy”.

• If someone visits Canada alone, but is in a polygamous marriage with

someone outside Canada, are they “practising polygamy” if they

communicate with or send money to a spouse abroad? What if

communication with a spouse is only through electronic means?

• If someone visits Canada without a spouse, but with children from

multiple spouses, is that person “practising polygamy”?

• If a visitor to Canada is accompanied by spouses, but lives separately, and

does not talk to or interact with spouses, is the visitor “practising

polygamy”?

The reach of this provision should be clarified before it becomes part of Canadian law.

D. Protecting Women

Protecting women is one articulated goal of Bill S-7, but the Bill overlooks the broader impact

of the targeted practices on women in affected countries. From an immigration perspective,

any woman subjected to the stated cultural practices would be inadmissible to Canada if she is

or will be practising polygamy with another person who is or will be physically present in

Canada at the same time. A woman who legally entered a polygamous marriage abroad will be

inadmissible to Canada if her husband is in the country at the same time as she or is going to be

in future. The broad scope of that prohibition is illustrated by the examples above.

Rather than protecting women, this would go against Canada’s obligation to protect the human

rights of all women, particularly those forced or coerced to comply with certain cultural

practices against their will. Those women will not have the opportunity to come to Canada and

be afforded the respect and protection that Canadian women are offered.

12

Polygamy Reference, supra note 7 at para 935.

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Permanent residents who start or resume a polygamous relationship in Canada could be found

inadmissible on that basis alone, without evidence of misrepresentation in the immigration

application or criminal conviction. The basis for determining inadmissibility is unclear. If a tip

was made anonymously, would that suffice? What procedural protections would be afforded to

the permanent resident and dependents if a concern was raised?

E. Protecting Children

The inadmissibility provisions could also harm children of polygamous unions, by removing

their parent(s) from Canada, removing the children themselves from Canada, and infringing

their rights under international law.

The negative consequences of forced marriage highlight the need for Canada to continue to

provide asylum and humanitarian and compassionate consideration to foreign national

children (predominantly female) who come to Canada to escape such practices, and to provide

support services to those children once they arrive. Given the potential impact on children and

the range of tools already available to address the relatively small problem of polygamy in

Canada, we question whether the amendments in Bill S-7 are necessary.

Canada has ratified the Convention on the Rights of the Child,13 which includes children’s right

to be protected from separation from their parents, except in the best interests of the child

(Article 9), the right to family reunification and the right to maintain regular and direct

contacts with both parents should children be separated from them across borders (Article

10).14

Under Bill S-7, children of polygamous relationships could not be in Canada with both parents

at the same time. The children would lose the benefit of a meaningful relationship with one

parent while only the temporary resident parent remains in Canada.

Canadian-born children could lose a relationship with a parent removed from Canada on

grounds of inadmissibility because of polygamy. If one parent is subject to removal and the

other has no status in Canada, children could potentially lose both parents if they are left in

Canada with extended family, friends or in foster care. This is in addition to the loss of financial

support and other benefits caused by the removal of a parent. Foreign national children could

13

Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 [Convention on the Rights of the

Child]. See also UNICEF Canada Brief to the House of Commons Standing Committee, February 2015, on

Bill S-7: Zero Tolerance for Barbaric Cultural Practices Act.

14

Ibid.

Submission

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of the Canadian Bar Association

themselves face removal, losing established ties to community, friends, family and services in

Canada.

Finally, children left behind in the country of origin could lose financial support, educational or

other opportunities, access to necessary health care or other services, and stigmatization from

“illegitimacy” caused when the parent seeking admission to Canada as a permanent resident

must “convert” their polygamous marriage to a monogamous one. A foreign national in a

polygamous relationship seeking temporary admission to Canada would be prevented from

entering with even one spouse, raising the possibility that children will be left with the other

parent in the country of origin.

III. PROVOCATION DEFENCE

The provocation defence in common law goes back as far as the 16th century. It has been in

Canada’s Criminal Code since its inception in 1892, and its defining elements have remained

substantially the same since.

The defence under section 232 of the Code is tightly circumscribed. It only applies in cases

where an accused has committed a murder (culpable homicide)15 and does not allow a

complete defence to a murder charge. If accepted by the court, the effect of the provocation

defence is to reduce what would otherwise be a conviction for murder to a manslaughter

conviction.

The very limited availability of the provocation defence should remain in place in its existing

form.16 Bill S-7 proposes a radical departure from the traditional defence. It would redefine the

constituent elements of section 232 and the provocation defence. We support legislative

change when an existing statutory framework fails to respond to the collective needs of

Canadian society, and acknowledge that antiquated and outdated laws ought to be scrutinized

and amended as necessary. However, this type of change should not occur on a piecemeal basis

but should consider the impact on the legislation at issue overall.

While research and a principled reassessment may ultimately demonstrate that amendments

to the provocation defence are required, Parliament should not modify a long-standing law

15

Criminal Code, section 232.

16

The CBA Criminal Justice Section has previously argued against piecemeal reform, and suggested a

comprehensive review before changes are made. See, for example, letter from H. McVey to R. Mosley,

QC, Reform to defence of provocation (Ottawa: CBA, 2001).

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without an informed and comprehensive assessment of the justifications for amending the

provocation defence, the relevant jurisprudence, and the practical impact of the amendment on

the criminal justice system as a whole. Consultations with key stakeholders would provide

meaningful insight into the efficacy of the existing provocation provisions. These steps have not

occurred in regard to the changes to the provocation defence proposed in Bill S-7.

A. The Proposal

Section 232 of the Criminal Code reads:

232. (1) Culpable homicide that otherwise would be murder may be reduced to

manslaughter if the person who committed it did so in the heat of passion caused by

sudden provocation.

(2) 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 is provocation for the purposes of this

section if the accused acted on it on the sudden and before there was time for his

passion to cool.

(3) For the purposes of this section, the questions

(a) whether a particular wrongful act or insult amounted to provocation, and

(b) whether the accused was deprived of the power of self-control by the provocation

that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to

another by doing anything that he had a legal right to do, or by doing anything that

the accused incited him to do in order to provide the accused with an excuse for

causing death or bodily harm to any human being. (emphasis added)

Clause 7 of Bill S-7 would amend the definition of provocation under section 232(2) of the Code

by replacing the words “wrongful act or insult” with “conduct of the victim that would

constitute an indictable offence under this Act that is punishable by five or more years of

imprisonment.”17 CBA has previously argued against raising the threshold for the use of the

provocation defence, and this would significantly raise that threshold.

B. Murder for “Honour”

One justification for this substantial change appears to be that the provocation defence has

been or will be relied on in so-called “honour killing” cases. Again, the current provocation

defence does not excuse accused persons from criminal liability, but merely limits their legal

culpability in certain limited circumstances. The provocation defence is simply not a “get out of

17

Bill S-7, supra note 1, clause 7(1).

Submission

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of the Canadian Bar Association

jail free” pass for defendants in “honour killing” cases. We urge government leaders to address

this misconception.

On December 4, 2014, Immigration Minister Chris Alexander told the Senate Committee on

Human Rights that:

[t]he defence of honour as a basis for provocation has been used dozens of times in

Canada and its very existence under our criminal law weakens the defence that

women and girls deserve to have in their own homes from their own relatives. We

should not be allowing there to be any concept of family honour, however construed,

as a mitigating factor for the murder of a family member. (…) It could be used in the

future and its very existence sends a message to men... that their honour is somehow

at stake and could be used to defend them in a court of law from the charge of

murder.18

Senator Attaulahjan, who moved the second reading of the Bill on November 18, 2014, said:

Measures in the bill would also amend the Criminal Code to address so-called honour

killings, where so-called honour-based violence is perpetrated against family

members — usually women and girls — who are perceived to have brought shame or

dishonor to the family. Honour killings are usually premeditated and committed with

some degree of approval from family and/or community members. However, in some

cases alleged spontaneous killings may be in response to behaviour by the victim,

who is perceived to be disrespectful, insulting or harmful to a family's reputation.19

If Canadian courts were routinely allowing cultural and religious beliefs to justify killing

innocent women and children, the need for legislative action would be clear. In fact, our

experience is that the provocation defence would not apply in such cases. We are unaware of

any Canadian court that has allowed the perpetrator in any “honour killing” case to successfully

use the provocation defence to justify actions based on a system of beliefs that condones

violence against women. On the contrary, courts have sent a strong message that there is

absolutely no place for violence against women in Canadian society.

The CBA denounces any attempt to justify, excuse or reduce a person’s responsibility for killing

another person by asserting that the murder is less repugnant because it was done for

“honour.” Neither Canadian courts nor the Criminal Code authorize any reduction of criminal

18

Standing Senate Committee on Human Rights, Evidence (4 December 2014). See also, CBC News,

“‘Barbaric cultural practices’ bill hearing leads to snarky exchange” (4 December 2014), online:

www.cbc.ca/news/politics/barbaric-cultural-practices-bill-hearing-leads-to-snarky-exchange-

1.2860352.

19

Debates of the Senate (Hansard), 41st Parl, 2nd Sess, No 149 (18 November 2014) (Hon Salma

Ataullahjan).

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culpability based on revenge, retribution or cultural beliefs inconsistent with Canadian

fundamental values, such as gender equality. This rationale for the Bill is unfounded.

Judicial response to provocation defence

Before the provocation defence can be used, the Crown must first prove murder beyond a

reasonable doubt. Only then does the defence have the potential to reduce a conviction from

murder to manslaughter. That can happen only if each element of the defence is also proven

beyond a reasonable doubt.20

Over its long history, legal limitations have been imposed on the provocation defence. In R v

Tran, the Supreme Court explained its historical development:

[13] The defence of provocation, presently codified in s. 232 of the Criminal Code, has

its origins in the English common law. More specifically, its precursor lies in the

sixteenth century concept of “chance-medley” killings.

[14] During the seventeenth century, another trend in the law of homicide emerged. It

provided that anyone charged with murder was presumed to have acted with “malice

aforethought”, for which the punishment at the time was death. In response to the

severity of the law, the courts resorted to the separate crime of manslaughter to take into

account certain human frailties that would operate to rebut the presumption. One such

concession to human frailty was that the accused had been provoked into committing the

act (Department of Justice, Reforming Criminal Code Defences: Provocation, Self-Defence

and Defence of Property: A Consultation Paper (1998), at p. 2).21 (emphasis added)

The defence takes into account “mitigating” circumstances that could reduce murder to

manslaughter in certain situations, again only if all elements of the defence are proven beyond

a reasonable doubt. In essence, “[p]rovocation is an allowance made for human frailty which

recognizes that a killing – even an intentional one – may be accompanied by a complete loss of

self-control that makes the act less heinous than an intentional killing by someone with

rational intent.”22

In R v Humaid, the Ontario Court of Appeal held that the provocation defence cannot apply

where the accused acted based on revenge, retribution or a cultural belief that homicide is an

appropriate response:

20

R v Humaid (2006), 81 OR (3d) 456, 208 CCC (3d) 43 (Ont CA) [Humaid].

21

R v Tran, 2010 SCC 58 at paras 13, 14 [Tran].

22

Michael Spratt, The honour killing bill: Who’s the barbarian now? (November 18, 2014), online: iPolitics

www.ipolitics.ca/2014/11/18/the-honour-killing-bill-whos-the-barbarian-now/.

Submission

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of the Canadian Bar Association

[85] … 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: see R. v. Dincer, [1983] 1 V.R.

450 (Vic. S. Ct.), at p. 464.

[86] … If an accused relies on religious and cultural beliefs like those described by Dr.

Ayoub to support a provocation defence, the trial judge must carefully instruct the

jury as to the distinction between a homicide committed by one who has lost control

and a homicide committed by one whose cultural and religious beliefs lead him to

believe that homicide is an appropriate response to the perceived misconduct of the

victim. Only the former engages the defence of provocation. The latter provides a

motive for murder.23

The Court further held that the provocation defence cannot be based on beliefs that go against

fundamental Canadian values, such as gender equality:

[93] … 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. Criminal law may simply not accept that a belief system which is contrary to

those fundamental values should somehow provide the basis for a partial defence to

murder.24 (emphasis added)

In Tran, the accused claimed that seeing his wife’s sexual involvement with another man

amounted to an “insult” that provoked him to attack her. The Supreme Court of Canada held

that this “insult” was insufficient to excuse a loss of control, within the meaning of section 232,

“for the ordinary person of whatever personal circumstances or background.”25 The Court

further stated:

It follows that the ordinary person standard must be informed by contemporary

norms of behaviour, including fundamental values such as the commitment to

equality provided for in the Canadian Charter of Rights and Freedoms. For example, it

would be appropriate to ascribe to the ordinary person relevant racial

characteristics if the accused were the recipient of a racial slur, but it would not be

appropriate to ascribe to the ordinary person the characteristic of being homophobic

if the accused were the recipient of a homosexual advance. Similarly, there can be no

23

Humaid, supra note 20 at paras 85-86.

24

Ibid at para 93.

25

Tran, supra note 21 at para 7.

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place in this objective standard for antiquated beliefs such as “adultery is the highest

invasion of property” (Mawgridge, at p. 1115), nor indeed for any form of killing

based on such inappropriate conceptualizations of “honour”.26

The “ordinary person” test that applies to the provocation defence clearly deals with a

Canadian person, and the courts have articulated that beliefs “antithetical to fundamental

Canadian values” cannot shield an accused from murder based on the notion that violence

against women is justified in certain situations.

The passage above similarly addressed concerns about a “gay panic” defence in murder

prosecutions (also known as “homosexual panic" or "trans-panic”). An accused person claims

they were the object of a same-sex or transgender victim’s romantic or sexual advances, and

these advances provoked the homophobic/transphobic accused into a psychotic state that

brought them to commit a physically-violent crime.27

The CBA supports improvements in the law to recognize the human rights of lesbian, gay,

bisexual and transgender people and members of other equality-seeking groups.28 The CBA has

also previously supported maintaining the provocation defence for exceptional cases.29

Limiting the availability of the defence to instances where the victim’s conduct itself constitutes

an indictable offence, as proposed by Bill S-7, would further narrow its availability. That might

be necessary if the defence were being inappropriately accepted by Canada’s appellate courts.

However, without evidence of a problem, the CBA is opposed to the significant legislative

change proposed to the provocation defence in Bill S-7. Credible evidence, careful research and

broad consultation should found any such change.

C. Practical and Procedural Considerations

Due to the trial judge’s gatekeeper function, the provocation defence rarely goes to the jury.

The Supreme Court of Canada addressed this issue in Tran, stating that:

[i]n a jury trial, the judge is the gatekeeper and judge of the law and must therefore

put the defence to the jury only where there is evidence upon which a “reasonable

jury acting judicially” could find that the defence succeeds…This necessarily requires

26

Ibid. at para 34.

27

Canadian examples, both from over 30 years ago, include R v Fraser, [1979] AJ No. 17 (Alta. Supreme

Court); R v Andes, [1980] OJ No. 812 (C.A.)

28

See, for example, CBA submission on Bill C-38, Civil Marriage Act (Ottawa: CBA, 2005).

29

Supra note 16.

Submission

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of the Canadian Bar Association

that there be a sufficient evidential basis in respect of each component of the defence

before it is left to the jury: the evidence must be reasonably capable of supporting the

inferences necessary to make out the defence before there is an air of reality to the

defence.30 (emphasis added)

The Court unequivocally ruled that an accused cannot invoke the provocation defence where

the homicide was motivated by “honour” or revenge, foreclosing the risk suggested as

requiring redefinition of the defence.31

In addition to being unnecessary, the proposed changes in Bill S-7 could result in trial

management problems. The Bill’s amended definition of provocation would create uncertainty

and additional complexity in murder trials, with the inevitable and undesirable consequences

of longer trials, more court delays and increased court administration costs.

“Air of reality” assessment

The trial judge must assess whether there is an “air of reality” to a provocation defence

asserted by the accused before the defence is put to a jury. Currently, it is relatively

straightforward for a trial judge to make that determination about a claim that the deceased’s

actions constitute a “wrongful act” or “insult”, although these triggering events are not

themselves defined in the Code.

This initial gatekeeping assessment would be far more complicated under the amended

definition of provocation proposed by Bill S-7. A trial judge would have to determine whether

there is an “air of reality” to an allegation that the conduct of the deceased “would constitute an

indictable offence under [the Criminal Code] that is punishable by five or more years of

imprisonment.”32 It is unclear what evidence would be required to establish an “air of reality”

to an accused’s assertion that the deceased’s conduct would constitute an indictable offence for

which incarceration for five years or more could have been imposed.

Procedural and evidentiary considerations

New procedural issues will likely arise from the proposed amendments to section 232 of the

Code. At what stage of a murder trial would evidence be heard on whether the deceased’s

conduct amounts to an indictable offence? What is the specific structure for trial judges to

30

Supra note 21 at para 41.

31

Ibid.

32

Bill S-7, supra note 1, clause 7(1).

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conduct the “air of reality” assessment? For example, will evidence specific to that assessment

be heard in a pre-trial motion or a voir dire? In our view, each option for conducting the “air of

reality” assessment is fraught with complexity and would add significant time to criminal trials.

Given the more restrictive definition of provocation proposed by Bill S-7, the “air of reality”

assessment will likely necessitate an extensive evidentiary record and lengthy legal

submissions from Crown and defence counsel. Paradoxically, at this stage of a murder trial,

there will be an inversion of roles for Crown and defence counsel. The defence will effectively

need to prove that the victim committed a serious indictable offence to come within the ambit

of the amended definition of provocation. Unless in agreement with the accused’s assertion of

provocation, the Crown will effectively be required to defend the deceased – all in the context

of a trial for the most serious criminal offence, murder.

Further, it is unclear if the Crown will be permitted to call evidence in defence of the deceased,

and, if allowed, what the permissible scope of this evidence will be. This is especially important

if the Crown’s responding evidence has no material bearing upon any other issues at trial.

Considering these complex procedural and evidentiary issues, the ultimate issue of whether

provocation is made out – an issue properly left for the jury to assess – will probably be

determined by the trial judge’s ruling at the “air of reality” stage.

Burden of proof

The burden of proof the accused must meet to establish an air of reality to the claim that the

deceased committed an indictable offence immediately before being killed is not specified.

Must the defence prove the deceased’s indictable offence on a balance of probabilities or

beyond a reasonable doubt, prior to the trial judge determining the “air of reality” issue? The

amended definition of provocation may result in the trial judge’s finding, as gatekeeper,

effectively usurping the role of the jury.

Jury’s role

Presuming the trial judge does allow the provocation defence to be put to the jury, there is still

uncertainty about the nature of the instructions the judge would provide to the jury. Jurors

would need to be instructed on whether they are required to make specific factual findings

about the degree of culpability of the deceased, and whether the deceased would have been

found guilty if tried for the indictable offence being alleged by the accused.

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Again, the burden on the accused to prove that the deceased’s conduct amounts to an indictable

offence is unclear (whether a balance of probabilities or beyond a reasonable doubt).

Self defence

Under Bill S-7, the deceased’s conduct would have been very serious for the accused to

successfully raise the partial defence of provocation. Indeed, the threshold is that the conduct

of the deceased would amount to an indictable criminal offence with liability of incarceration

for five years or more. Given the seriousness of the conduct against the accused, it would likely

also support an argument for self-defence.

It is difficult to conceive of circumstances where an “air of reality” would exist for the amended

definition of provocation but not for self-defence. In other words, the proposed provocation

defence would effectively be subsumed under the self-defence regime, and would no longer

exist as a stand-alone defence under the Code. Provocation would become a “lesser and

included defence.” Given this similarity, an accused could likely advance self-defence as the

principal defence, with provocation as an alternative if self-defence is rejected by the jury.

IV. CIVIL MARRIAGE ACT AMENDMENTS

The CBA supports adding section 2.1 to the Civil Marriage Act, to state that “[M]arriage requires

the free and enlightened consent of two persons to be the spouse of each other.”33 We agree

that steps to reduce the incidence of forced marriage are laudable.

Forced marriage has been considered by the UN Committees on the Rights of the Child, and the

Elimination of Discrimination against Women and the negative consequences of this practice

highlighted:

20. In some contexts, children are betrothed or married very young and in many

cases, young girls are forced to marry a man who may be decades older. In 2012,

UNICEF reported that almost 400 million women aged 20-49 around the world were

married or had entered into union before they reached 18 years of age.[1] Therefore

the CEDAW and CRC Committees have been giving a particular attention to cases

where girls have been married against their full, free and informed consent, such as

when they have been married too young to be physically and psychologically ready

for adult life or making conscious and informed decisions and thus not ready to

consent to marriage. Other examples include cases where the guardians have the

legal authority to consent to marriage of girls in accordance with customary or

statutory law and in which girls are thus married contrary to the right to freely enter

into marriage.

33

Supra note 1, clause 4.

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21. Child marriage is often accompanied by early and frequent pregnancies and

childbirth, resulting in higher than average maternal morbidity and mortality rates.

Pregnancy-related deaths are the leading cause of mortality for 15-19 year old girls

(married and unmarried) worldwide. Infant mortality among the children of very

young mothers is higher (sometimes as much as two times higher) than among those

of older mothers. In cases of child and/or forced marriages, particularly where the

husband is significantly older than the bride, and where girls have limited education,

the girls generally have limited decision-making power in relation to their own lives.

Child marriages also contribute to higher rates of school dropout, particularly among

girls, forced exclusion from school, increased risk of domestic violence and to

limiting the enjoyment of the right to freedom of movement. Forced marriages often

result in girls lacking personal and economic autonomy, attempting to flee or commit

self-immolation or suicide to avoid or escape the marriage.34

Underage marriage, however, is potentially distinct from forced marriage, and deserves further

consideration. The question of whether there should be a prescribed age below which no

person should be permitted to contract to marriage under any circumstances is complex. The

suggested minimum age of 16 is currently in federal legislation that applies only to the

province of Quebec. In the other provinces and territories, a minimum age is not specified, and

there is some debate about the minimum age to marry at common law.

The proposed amendments to section 2.2 of the Civil Marriage Act would create a new national

minimum age of 16 for marriage, and no marriage could be contracted for anyone younger.

Under their exclusive power to make laws on the solemnization of marriage, the provinces and

territories could prescribe additional requirements, such as the need for parental or judicial

consent for marriages between the national minimum age and the age of majority.

The UN Committee on the Rights of the Child, in its General Comment No. 18, recently

reaffirmed that forced marriage occurs anytime at least one of the parties involved is under the

age of 18 years, or one of the parties does not have the capacity to express full, free and

informed consent to the marriage. In exceptional circumstances, the UN Committee

contemplates that a marriage of a mature, capable child below the age of 18 may be permitted,

if the child is at least 16 years old, the marriage is endorsed by a judicial authority based on

legitimate exceptional grounds defined by law, and there is evidence of the child’s maturity

34

Joint general recommendation/general comment No. 31 of the Committee on the Elimination of

Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful

practices, 4 November 2014, CEDAW/C/GC/31-CRC/C/GC/18, at 7.

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without deference to cultures and traditions.35 The UN Committee provides no guidance on

what the legally-defined exceptional circumstances might be.

Another option would be to avoid specifying a minimum age of marriage in favour of

prioritizing an individual child’s evolving capacities and autonomy in making decisions, but

including safeguards such as a requirement for parental or judicial consent. This is consistent

with article 12 of the Convention on the Rights of the Child, that a child capable of forming his or

her own views have the right to express those views freely in all matters affecting him or her,

with due weight being given to the child’s views in accordance with his or her age and

maturity.36

Hybrid positions are also possible. Accepting 16 as a minimum age below which no marriage

shall be contracted, but adding an exception allowing marriages of mature and capable young

persons between the ages of 14 and 16 with parental or judicial approval, is one example.

Bill S-7’s proposal to set a minimum age of 16 for marriage with no exceptions is inconsistent

with international practice and children’s human rights instruments. In most member

countries of the Organisation for Economic Co-operation and Development (OECD), persons

can marry before the “marriageable age” (the minimum age a person is allowed by law to

marry), subject to parental consent. In many countries, persons can also marry prior to

reaching the common marriageable age, in special circumstances and with permission from the

courts.

This discussion highlights the need for further information and deliberation on this complex

issue. Careful consideration must be given to whether establishing a minimum age below

which no marriage can be contracted, backed by criminal sanction, is preferable to a consent-

based regime, supplemented by parental approval or judicial oversight.

V. CONCLUSION

Violence against women and children happens in all cultures and across all communities.

Canada’s government is responsible for addressing this and related problems, and fulfilling its

international commitments to protect women and girls. However, the amendments proposed

by Bill S-7 raise legal concerns that warrant careful deliberation before the Bill becomes law.

35

Ibid.

36

Supra note 13, art 12.

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The proposal for a new category of inadmissibility based on engaging in polygamy is

unnecessary, and would effectively prevent women and children in forced polygamous

relationships from immigrating to Canada. Current immigration law has several mechanisms

that prevent the immigration of polygamous persons to Canada, and the practice of polygamy is

rare in Canada. The applicable definition of “polygamy” is overly broad and ill-defined, which

makes its application to immigration law unpredictable and difficult to apply in practice. If the

goal is to protect women and children, this amendment should not become law.

The CBA urges Parliament not to modify the provocation defence without a comprehensive

assessment and public consultations. Canadian courts have been clear that the defence cannot

apply to “honour killings,” in the sense that homicide is not legally justifiable by cultural or

religious beliefs that are contrary to fundamental Canadian values, including gender equality.

Additionally, it would be practically and legally challenging to apply the defence as proposed in

Bill S-7, particularly in proving whether the deceased had committed an indictable offence.

The CBA supports the addition of section 2.1 to the Civil Marriage Act, which would require free

and enlightened consent to contract into marriage. We raise questions about whether a

prescribed minimum age to contract into marriage is preferable to a consent-based regime.

Further study is required.

The CBA offers our legal expertise, assistance and unique perspective to assist the government

with further consultation or reviews.