EXTRA Vol. 149, No. 3
OTTAWA, FRIDAY, JULY 17, 2015
SI/2015-67 July 17, 2015
ZERO TOLERANCE FOR BARBARIC CULTURAL PRACTICES ACT
Order Fixing the Day on which this Order is registered as the Day on which Part 3 of the Act Comes into Force
P.C. 2015-1073 July 16, 2015
His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 16 of the Zero Tolerance for Barbaric Cultural Practices Act, chapter 29 of the Statutes of Canada, 2015, fixes the day on which this Order is registered as the day on which Part 3 of that Act comes into force.
(This note is not part of the Order.)
This Order stipulates that Part 3 of the Zero Tolerance for Barbaric Cultural Practices Act, assented to on June 18, 2015, will come into force upon registration.
The Zero Tolerance for Barbaric Cultural Practices Act (the Act), formerly known as Bill S-7, contains the following three parts.
Part 1 contains amendments to the Immigration and Refugee Protection Act that will add practising polygamy as a new ground for inadmissibility. As regulations are required to support the enforcement of this new inadmissibility, Part 1 of the Act will come into force at a later date.
Part 2 contains amendments to the Civil Marriage Act that codifies the requirements for free and informed consent and the dissolution of any previous marriage; and introduces a new national absolute minimum age of 16 for marriage (which came into force upon royal assent).
Part 3 contains amendments to the Criminal Code that
- clarifies that it is an offence for a lawfully authorized officiant to knowingly solemnize a marriage in contravention of federal law (which includes a forced or underage marriage as per the amendments to the Civil Marriage Act);
- introduces two new offences related to celebrating (e.g. solemnizing with or without legal authority), aiding or participating (e.g. taking an active role to ensure the marriage occurs) in a marriage ceremony knowing that at least one of the parties being married is either doing so against his or her will (section 293.1) or is under the age of 16 years (section 293.2). Both are indictable offences that carry a maximum term of imprisonment of five years;
- provides that it is an offence to remove a child from Canada with the intention that an act be committed outside Canada that, if it were committed in Canada, would constitute an offence of forced or underage marriage;
- introduces a new recognizance order (peace bond) for the purpose of preventing a forced or underage marriage from taking place, or to prevent a child from being removed from Canada for the purpose of a forced or underage marriage; and
- provides that the defence of provocation is restricted to circumstances in which the victim engaged in conduct that would constitute an offence under the Criminal Code that is punishable by five years or more.
The amendments in Part 3 of the Act fill a gap in the law by directly addressing the social harm caused by community endorsement of a ceremony involving an underage or forced marriage. These unwanted marriages create legal bonds that are difficult to break and within which sexual assaults are likely to occur. The amendments also provide tools to prevent underage and forced marriages from taking place and to prevent children from being removed from Canada for the purpose of such marriages. Finally, the amendments limit the application of the defence of provocation so that it would no longer be available in honour killings and many spousal homicides.
In the October 2013 Speech from the Throne, the Government committed to ensuring that early and forced marriages, and other barbaric cultural practices do not occur on Canadian soil.
For the purposes of this Act, “barbaric” cultural practices encompass forms of gender-based family violence, such as early, forced and polygamous marriages and honour-based violence. These practices, like other forms of family violence, have a harmful impact on families and society in general.
Prior to this Act, there was no specific offence in the Criminal Code related to forced or underage marriages. More than 10 western democracies (including the United Kingdom, France, Germany and Australia), have introduced forced marriage offences over the past decade. The amendments fill a gap in the law by directly addressing the harm caused by underage and forced marriages. These two new offences also serve as anchors for the preventive measures in the Bill, namely the specific peace bond and the prohibition on removing a child from Canada for a forced or underage marriage.
The forced or underage marriage peace bond is a preventative court order issued by a provincial court judge under the Criminal Code, which enables potential victims to protect themselves from a forced or underage marriage without having their family members charged with a criminal offence. The preventive forced or underage marriage peace bond can be obtained by or on behalf of a victim where the judge is satisfied that the victim fears on reasonable grounds that the defendant will commit an offence related to a forced or underage marriage. The peace bond requires the defendant to agree to specific conditions to keep the peace, including refraining from making arrangements for the forced or underage marriage, refraining from leaving the jurisdiction of the court and surrendering passports under his or her control. The defendant will not be subject to a criminal charge unless they breach the order.
In addition, there have been reports of Canadian children being taken abroad for a forced or underage marriage. The Act therefore makes it a crime to take a child out of Canada for these purposes.
In murder cases, section 232 of the Criminal Code provides for the partial defence of provocation. The defence applies only where there is proof of an intentional killing. The defence would succeed where an accused raises a reasonable doubt that he or she committed the murder “in the heat of passion” after having lost control, which up until now, was defined as being attributed to a sudden “wrongful act or insult” by the victim that could have caused the ordinary person to also lose self-control. The defence is “partial” because rather than producing an acquittal of the murder charge, it produces a conviction for manslaughter.
The defence of provocation in the Criminal Code has been raised in several “honour killing” cases in Canada although it was not successful in any of those cases. The defence has also been raised in many spousal homicides, where it is sometimes successful. In these types of cases, the “provoking” conduct by the victim is generally lawful conduct, such as insulting words or gestures, termination of a relationship, or real or perceived infidelity.
The amendments to the Criminal Code limit the defence of provocation so that it can only be raised where the victim is engaged in conduct that would constitute an offence. This ensures that the defence cannot be raised in “honour killing” and many spousal killing cases. As well, some like-minded countries have taken steps in recent years to abolish or limit the defence (e.g. Australia, New Zealand, and the United Kingdom).
Once the legislation is in force, it will be a crime to knowingly officiate an underage or forced marriage; actively participate in a wedding ceremony in full knowledge that one party is marrying against their will or is under the age of 16 years; and removing a minor from Canada for a forced or underage marriage. Moreover, the legislation will provide for preventive peace bonds to be taken out by or on behalf of victims who seek protection against a pending forced or underage marriage, breach of which would be a criminal offence.
In addition, the defence of provocation will no longer apply to a “wrongful act or insult” by the victim, but will be limited to situations where the alleged provocation consists of conduct that would be a criminal offence that has a five-year maximum sentence or higher. This means that, in the context of family violence, the defence would no longer be able to be used when the perpetrator alleges that he or she was provoked by conduct such as lifestyle or dating choices.
In developing various aspects of the legislation, consultations were held at the federal level with partners, such as Foreign Affairs, Trade and Development Canada, Status of Women Canada, the Public Health Agency of Canada and the Canada Border Service Agency.
Discussions were held in relation to the topics of early and forced marriage and honour-based violence with provincial and territorial justice officials in various workshops and federal-provincial-territorial fora over the past several years.
Criminal Law Policy Section
Department of Justice Canada
Family, Children and Youth Section
Department of Justice Canada