Zero Tolerance for Barbaric Cultural Practices Bill

Last week I appeared before the Senate Committee on Human Rights to talk about Bill S-7 - Zero Tolerance for barbaric Cultural Practices Act.

I wrote about the bill last month - surprise, surprise - the legislation is more than just problematic

According to Immigration Minister Chris Alexander S-7 is necessary legislation.  The bill may indeed be necessary - to pander to the conservative base and those fearful of foreigners but it does little to curb ‘barbaric’ cultural practices.  

Quite simply, S-7 is a solution in search of a problem. Alexander’s new legislation does do one thing - it radically changes the defence of provocation found in the Criminal Code.

Alexander’s bill is yet another example of the Conservative government’s obsession with law and order.   As is the modus operandi for the ruling party, Bill S-7 advances the Conservatives’ justice agenda in a disingenuous way.

But obfuscation and half truths by the Harper government are nothing new when it comes to criminal law.  

It seems some intellectual heavy weights are taking note.  In slamming the Conservative government over abusive and inhumane prison practices this is what former Supreme Court Justice Louise Arbour told the Globe and Mail:

“In light of everything we know about segregation, the government may want to think about including it in its list of ‘barbaric cultural practices’ that it seems to be so concerned about”

With that in mind - here is my unedited stream of consciousness rant delivered to the Senate Standing Committee on Human Rights on December 8th, 2014:

J. Michael Spratt, Partner, Abergel Goldstein & Partners, As an Individual:   Thank you for inviting me to speak on this important piece of criminal legislation.  My name is Michael Spratt, and I practice criminal law here in Ottawa.  I'm a partner with the law firm Abergel Goldstein & Partners.  I'm a past board member of the Criminal Lawyers Association, currently on the CLA's legislation committee and the vice‑president of the Defence Counsel Association of Ottawa.  I frequently comment and write on new legislation and criminal law policy.  I have represented individuals charged with murder, and I've litigated cases involving the use of provocation.  My firm has also been involved in homicides that were alleged to be honour-based.  Although I'm here as an individual, I'll preface what I say by saying that all of the criminal lawyers that I've spoken to share my views on this legislation, but what I will be testifying to or talking about are my views.
I must say it's strange to be appearing before the Human Rights Committee on a piece of legislation that is predominantly concerned with criminal law issues.  The title of this bill, as has been mentioned, has attracted considerable and I think justifiable criticism.  The Minister of Citizenship and Immigration has said that all violence against women is barbaric.  This is true and unfortunate.  Violence against women unfortunately does not, however, limit itself to specific cultural boundaries.  This bill's title links that violence to specific cultures, and again I say that is unfortunate.  I say it's unfortunate because this bill will have major impacts on our criminal law, but it's a criminal law bill that's cloaked in the language of culture and presented by the Immigration Minister.  That's not entirely unexpected.  I think it's consistent with this government's legislative history, which I submit to you is designed to obscure major legislative changes and limit debate.  In that context, I think it's important to accurately detail the impacts of this bill on our criminal law.  In doing so, I'm going to make some references to some case law and to some testimony you've heard from the minister.
I want to specifically speak about provocation and peace bonds.  Provocation is currently governed by section 232 of the Criminal Code and provides for the defence of provocation, which reduces the charge of murder to manslaughter where the accused acts in the heat of passion caused by sudden provocation.  Provocation is a historic allowance for human frailty made by the common law and now codified in our Criminal Code.  It requires that there be a wrongful act or insult that would be sufficient to deprive an ordinary person of the power of self‑control and cause that person to act on the sudden before there was a time for any cooling of the passions.  Provocation reflects a recognition of mitigating circumstances.  In other words, provocation is an allowance made for human frailty, which recognizes that a killing, even an intentional killing, may be extenuated by a complete loss of self‑control and is thus less heinous than an intentional killing by a person acting with a more rational intent.
Now, there are limits on provocation.  The minister told you that measures in Bill S‑7 would amend the Criminal Code so that legal conduct by a victim cannot legally be considered as provocation.  This is already the case.  The Criminal Code makes it clear that one cannot be legally provoked by someone who is doing anything that they had a legal right to do or by doing anything that the accused incited him to do. 
The fact is that our courts have time and time again rejected religion and honour as a basis for provocation.  The minister, when questioned about some court cases, mentioned the case of Stone from the Supreme Court.  This case has nothing to do with honour killings and only peripherally deals with provocation.  It is a case about non‑insane automatism and automatism issues.  It is simply not applicable to our discussion and, quite frankly, is a little bit dated.
I would like, on the other hand, to talk about some cases that do deal with honour killings and do deal with provocation, cases that the minister was either not aware of or didn't see fit to discuss with you.
The minister suggested that changes to the rules governing the Criminal Code provisions of provocation are necessary to stop honour killings.  As I said, provocation requires that there be a wrongful act or insult that would be sufficient to deprive an ordinary person of the power of self‑control and cause that person to act on the sudden.  Honour killings don't meet these criteria.  Provocation deals with the ordinary person test.  This, the Supreme Court has confirmed, is the ordinary Canadian person, and I think we can all agree that the ordinary Canadian person is repulsed by religious‑based killings. 
The Supreme Court made that clear in the case of Tran.  They said that in the context of provocation, the reasonable person is informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality.  The Tran case, 2010 SCC 58, actually upheld the conviction that was entered on appeal for a murder where the accused claimed to be provoked by the sight of his estranged wife having sexual relations with another man.  What was ultimately clear in that case was that whether the defence of provocation ultimately goes to a jury depends upon their being an air of reality to that defence, something that the courts carefully scrutinize.
Now, the government has maintained that these changes are necessary.  Quite simply, they're wrong.  The minister used the Shafia case as justification for this change in provocation.  Of course, the facts of that case are well known, but what also is well known is that provocation wasn't raised at the Shafia case, and that Shafia was convicted of four counts of first degree murder.
Importantly, in 2006, the Ontario Court of Appeal, in a case called Humaid, upheld a conviction for first degree murder and denounced honour killings in language that even someone not trained in criminal law and not the Minister of Justice would be able to understand.  The court said that assuming that an accused's religious and cultural beliefs that are antithetical to fundamental Canadian values, such as the equality of men and women, can never play a role at the ordinary person phase of the provocation inquiry.  In fact, the Court of Appeal went one step further and said these types of rationales don't result in provocation, but they are evidence of motive.
The court goes on, and I would commend this committee to take that case into account.  It can be found at 81 of the Ontario Reports, 3rd edition, 456.
The case of Siddiqui, an Ottawa case, an alleged honour‑based killing, also made its way to the Court of Appeal, and the Court of Appeal agreed with itself from 2006.  The accused in that case attempted to claim provocation in relation to an honour killing.  Siddiqui was convicted of first‑degree murder.  Expert evidence was allowed at trial, and the defence was rejected.
Now, this bill does more than limit the application of provocation to honour killings, a situation that rarely, if never, arises, and rarely, if never, is accepted by the courts.
This bill also prevents provocation from applying to a range of other cases that have historically found an air of reality in the defence.  Racial slurs, hate speech, mistake of fact, all of these situations will be limited in terms of the ability to raise a provocation defence.
One can imagine a variety of situations where provocation under these circumstances may be applicable, may at least have an air of reality.  Imagine the father of a young girl who has committed suicide due to cyberbullying and online harassment.  That father is then confronted by the bully in that case, who drove his daughter to kill herself.  That bully says the most despicable and inhumane things to that father, spits on his daughter's grave.  This person would not be able to raise provocation if he acted in the heat of passion, on the sudden, before his passions had a time to cool.
Even if we combine offences such as corrupting morals, making sexually explicit material available, corrupting children, indecent acts, exposing genitalia to a person under 16, violence to the clergy, disrupting a religious worship or a funeral, recording and distributing information, failure to provide the necessities of life, administering a noxious substance, threats to kill animals, inciting or promoting hatred, theft, fraud and mischief with the most despicable but lawful language you can imagine, provocation would not apply.  This bill would be an absolute bar to it.
Perhaps it speaks to this government's blindness to the case law or a lack of imagination on their part or simply a lack of compassion, but in limiting provocation to prevent something that rarely, if never, will arise, provocation is removed from a variety of cases that it may legitimately apply to, and for that reason, this bill simply goes too far.
Now, I think I'm running into the clock here, but I would like to talk about the peace bond section for a minute.
Peace bonds already exist.  Section 810 arguably covers what is sought to be covered in section 810(2) under this legislation.  It's fine to add on another section of the Criminal Code.  We have to realize that we're all expected to know the law.  Ignorance of the law isn't an excuse, and the more things we put in the Criminal Code, the harder it is to know what's in that book. 
But let's not forget that even if it's not undesirable to add this section, to clarify this section, let's not forget what the peace bond process entails.  This government is suggesting that a 14‑year‑old girl or a child or a teacher takes it upon themselves to lay a peace bond against her family or their family.  Of course, that doesn't end matters.  When one goes to the court and swears the documents to start this peace bond process, it doesn't mean that the peace bond is automatically imposed.  We still have something called due process in the court process here.  The matter would be set for a hearing.  The girl would need to testify and present information and evidence to prove her case.
I'm not saying that that's bad or that this section is bad.  It's just not a cure to the ills that this bill aims to correct, and it's not going to be effective in limiting these types of situations.  It seems to be sort of nothing more than mere puffery because it's not going to play out in court how it's sort of been billed.  This isn't something that is going to be routinely used by a 14‑year‑old child against her parents.  And to that end, although it's less offensive than changes to provocation, in my submission, it's something that shouldn't be viewed as a panacea or a cure‑all in terms of this legislation.