Mr. Speaker, I am glad to be here today to speak to this important bill.

I am a little disappointed. I expected we would be able to find unanimous and enthusiastic support for the bill. I hear the official opposition complaining about the language, which it wants to toy with today. I am concerned that it is perhaps not as concerned about the issues as it is about the wording in the title. The opposition needs to refocus on that.

The Liberals today have at least been consistent, but it is a very strange position to take. The member opposite seems to continually suggest that there is absolutely no cultural component anywhere that creates specific practices. I do not understand why the members would take that position. We all know we have universal challenges. He talks about spousal abuse and those kinds of things. That is a universal challenge, but we certainly are talking about some very specific things.

I am glad to speak to Bill S-7, the zero tolerance for barbaric cultural practices act. In the Speech from the Throne in October, 2013, our Prime Minister promised that he would ensure that early and forced marriage and other harmful cultural practices, including things like polygamous marriages and so-called honour-based violence, would not occur on Canadian soil. Bill S-7 would amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code in a variety of ways, and it would address these practices.

For instance, Bill S-7 would create new and specific offences in the Criminal Code related to participation in a forced or early marriage ceremony. That includes things like removing a minor from Canada for the purpose of such a ceremony abroad, and establishing a targeted peace bond that could be used in a preventative way before the marriage and its associated harm occur.

Today, I would like to build a bit on what the minister spoke about, which is the proposed amendment to the Criminal Code that would limit the scope of the provocation defence.

During debates in committee proceedings in the Senates, there appeared to be a number of misconceptions about the merits of the existing law. There are good reasons for the proposed law reform, and I hope we can clarify some of those matters this afternoon.

The defence of provocation, sometimes known as the “heat of passion” defence, currently applies only to a charge of murder. It comes into play only if the murder has actually been proven. It is called a partial defence, which means that where it is successful, this defence claim does not give rise to complete acquittal, but rather changes the verdict to manslaughter instead of murder.

The defence of provocation is successful where the murder was committed in response to some sort of wrongful act or insult from the victim that was so strong that it “deprive(s) an ordinary person of the power of self-control”, and where the accused acted suddenly “before there was time for his/her passion to cool”.

Although the defence of provocation is only partial, as I said, it provides two very significant benefits to the accused if they are successful in applying for it. First, a conviction for manslaughter as opposed to murder leaves the judge with very wide sentencing discretion. A conviction for second degree murder carries a mandatory sentence of life in prison and strict parole ineligibility. However, a manslaughter conviction carries no mandatory minimum sentence unless a firearm was used, in which case, it would be a minimum of four years. In all other circumstances, manslaughter carries no minimum sentence.

At the sentencing stage following a successful provocation plea, the provoking conduct or provocation of the victim is taken into account again as a mitigating factor that can reduce the sentence. As members can see, the sentencing benefit provided by the provocation defence is, indeed, substantial.

A second benefit of the defence, if it is successful, is that it allows a murderer to avoid the stigma associated with the label of murderer. It is this aspect that we, as legislators, need to keep in mind in reviewing this provision. The law treats some killings as less blameworthy than others and effectively says that murder is not always murder.

Under the current law, which has been in the Criminal Code since 1892, to constitute a provocation, the victim's conduct only needs to be a wrongful act or insult. If the victim had a legal right to do what they did, this is not to be considered provocation, but that exclusion is very narrow. It applies to things that are legally and expressly authorized, such as police officers executing a search warrant.

Provocation is presently considered where the victim's conduct was actually lawful. The defence is frequently raised where the alleged provocation was conduct such as verbal insult or offensive gestures. The proposed amendment would limit provocation so that it could only be raised where the alleged provocative conduct by the victim would amount to an offence punishable by five years in prison or more.

The defence would therefore be available in cases where a person killed in the heat of passion, provoked by criminal offences such as assault, things like verbal threats, criminal harassment, theft or fraud of property over $5,000, extortion, and a few others. Many provocation claims are in fact based on alleged provocation now of this type of criminal activity.

The kinds of conduct that would no longer be treated as provocation under this act would be things like verbal insults or other types of offensive but lawful behaviour. However unpleasant or hurtful an insult may be, if it is lawful conduct, it should not excuse or mitigate murder or be allowed to do that.

In the debates in the other place, some suggested this proposed reform went too far and limited the defence too much. However, it is reasonable to expect that Canadians can and should be expected to control their reaction to insult and offensive gestures with reactions other than killing the person.

There are two primary objectives of the proposed reform. The first is to prevent the defence from being raised in future honour killing cases, possibly successfully. We have seen examples of young girls and women who have been killed because they refuse to follow their parents' wishes. This can involve an issue such as dating, or marriage partners, or how to dress. These young people have the freedom in our country to make their own choices. That actually is a fundamental freedom for everyone who is in Canada.

This is not just theoretical. This defence has been raised so far in at least three murder prosecutions where the murder could be characterized as honour based. Thankfully the defence failed in all three of those cases, which some have used as proof that the law is working perfectly and does not need amending. We would argue that this is an overly optimistic view. For one thing, all three cases were appealed on complex questions of law and evidence that included how the defence should or should not incorporate evidence of the accused's culture.

These issues are not definitively resolved by the courts. Despite some discussion of gender equality in a couple of the cases, none of the rulings establishes a matter of law that the defence is excluded in honour killing cases. It remains available to be argued by any person accused and convicted of murder.

If a teenage girl does not wish to marry the person chosen for her by her parents and in refusing their wishes they feel she insults their cultural heritage, community and beliefs, if one or both parents were to react by killing the child, this defence could actually be used. We do not believe it is appropriate that this could potentially be successful.

Our second objective of the proposed reform is to modernize the defence with respect to violence against women overall. It can no longer be used to excuse spousal murders resulting from the offender's violent reaction to the victim's lawful conduct.

There is a long history of the provocation defence being raised and sometimes accepted to excuse spousal murders in Canada. Most disturbingly, this often happens in the context of marriage breakdown. These cases have not gone unnoticed. As one academic has noted in her review of the honour-killing provocation cases:

While it may be true that gender equality is, at a rhetorical level, a fundamental Canadian value and that violence against women is neither accepted nor encouraged in Canadian society, the operation of the defence of provocation in the criminal courts is certainly not exemplary of either of those values.

Canadian judges and juries have accepted the defence where men murdered their current or former spouses, or their former spouses' new partners, in response to other forms of lawful conduct such as verbal insults, questioning paternity, refusal to talk privately following termination of a relationship, and real or perceived infidelity.

These cases are very similar to honour killing cases in that women are killed because husbands or other family members reacted violently when they failed to control their behaviour. Women and girls are still seen as the property, in some places and in some minds, of their husband or their families. Their aspirations and desires are subjected to the will of others for their own good.

While feelings of dishonour and shame are experienced at the family or community level in the case of honour killings, they are at the personal or private level in the case of spousal killings.

No one should be able to use the defence that they violently harmed another person because of they were provoked. Our bill addresses this issue in a way that removes that excuse. I would urge all members to work with us and to support this important bill.

David Anderson

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