Bill S-7: Barbarically Unnecessary

Today I appeared before the Standing Committee on Citizenship and Immigration to provide my views on Bill S-7, the Zero Tolerance for Barbaric Cultural Practices Act.

I wrote about the bill last year - surprise, surprise - the legislation is more than just unnecessary, it is 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.

My appearance at committee today was slightly frustrating.  I was only given 8 miniutes to detail all the problems with the bill.  This is not unusual.  But after opening remarks only three MPs were permitted to ask questions.  The first question was asked by Conservative Devinder Shory, who prefaced his question with a 10 minute speech.  The NDP and Liberals asked one round of questions each before the bells rung calling for a vote in the House.

The Chair sought unanimous consent to permit two more questions.  The Conservatives denied consent and the meeting was over.

Frustrating.

Here is what I had to say - although I doubt the Conservatives were listening:

Thank you for inviting me to speak on this important piece of criminal legislation.

I practice criminal law in Ottawa. I'm a partner with the law firm Abergel Goldstein & Partners. I'm a past board member of the Criminal Lawyers' Association, am currently on the CLA's legislation committee and am the vice-president of the Defence Counsel Association of Ottawa.

I have represented individuals charged with murder, and I've litigated cases involving the use of provocation.  

I am use to appearing before the Justice Committee – although I am happy to be here - it is strange that this bill is not before that committee as it's a criminal law bill.

This billI is 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.

I want to specifically speak about provocation and peace bonds.  

Provocation

Provocation is currently governed by section 232 of the Criminal Code and provides for the defence of provocation, which can in some cases reduce the charge of murder to manslaughter. Provocation is a historic allowance for human frailty.  

Actually understanding what provocation means is fundamental.  When the minister testified before you there was a comment from the committee which likening provocation to premeditated murder.  Legally that is completely incorrect. 

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 before there was a time for any cooling of the passions. Provocation reflects 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 measure 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.

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.

Our courts have time and time again rejected religion and honour as a basis for provocation.  

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 it clear in the case of Tran: that 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 is crystal clear is that whether or not the defence of provocation ultimately goes to a jury depends upon their being an air of reality to that defence - this something that the courts carefully scrutinize.

Minister Alexander told you that anyone charged murder could raise the defence of provocation in seeking a reduction to the lesser charge of manslaughter. 

That is misleading and simply untrue – there must be an air of reality to the argument.

The government has maintained that the change in S-7 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.

So what do our courts say about honour based provocation.  Lets look at a case that the immigration minister did not discuss - the 2006, Ontario Court of Appeal, case Humaid.  The ONCA upheld a conviction for first-degree murder and denounced honour killings in language that even an immigration specialist can 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. 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 evidence that you have heard is that there have been three unsuccessful cultural provocation defences.

The Minister told you “this defence has been raised in several so-called honour killing cases across Canada.” I hope he was not trying to insinuate that this application of provocation is common – that would be a reckless mischaracterization.

Three cases.

Now, this bill does more than limit the application of provocation to honour killings. 

If that was the intent – to have this legislation specifically address this perceived problem then the bill should have been drafted as such.  Perhaps the government should read the recent SCC case of NUR which was highly critical of overly broad legislation. 

Bill S-7 applies to much more than just honour provocation. It 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 it may be appropriate to leave provocation with the jury. Imagine the father of a young girl who has committed suicide due to cyberbullying, sexual assaults and online harassment. Imagine that father is then by a friend of the offender who says the most despicable and inhumane things to that father, spits on his daughter's grave. Under this law if that father reacted violently he would not be able to raise provocation even if he acted in the heat of passion, on the sudden, before his passions had a time to cool. 

Even if we combine that odious example with 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 an inability to understand that life can be complex but this bill simply goes too far. 

Peace Bonds

Peace bonds already exist. Section 810 arguably covers what is sought to be covered in section 810.02 under this legislation. 

Even if it's not undesirable to add this section let's not forget what the peace bond process entails.  

This government is suggesting that a 14-year-old girl takes it upon herself to lay a peace bond against her family or their family.  

I suppose an outside agency – like the CAS – could initiate the peace bond.  But they can already do this or apprehend the child, or go to the police.

Regardless of the mechanism laying a peace bond 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 this country.

The peace bond would be set for a hearing – in our under funded courts – and I see no funding in this bill – that will be months down the road.  

The girl would need to testify and present information and evidence to prove her case.

Again – the misinformation presented by the government about this section is shocking.  At the Senate Ms. Blackell – a senior DOJ lawyer said that the proceeding could even be ex parte. It could be rather rapid, without having the defendant present.

This is false, misleading, and does not represent reality. 

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 nothing more than mere puffery because it's not going to play out in court how it's 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.

I would be happy to answer any questions about the flaws in this bill or clarify any of the misinformation used in its justification.