Law Times

Law Times • November 3, 2014 Page 11 www.lawtimesnews.com Do we need specific criminal provisions for forced marriages? Judy van rhiJn For Law Times W ith Canada taking a leadership role in the global struggle to prevent forced marriages, the Department of Justice is funding programs on the ground and is looking at pos- sible legislative responses, includ- ing the controversial question of criminalization. The Department of Foreign Affairs, Trade, and Development has identified ending child, early, and forced marriage as a foreign policy and development prior- ity. On the world stage, Canada has developed resolutions at the United Nations' human rights council and the general assem- bly and, through its children and youth strategy, implemented national protection frameworks and programming in high-prev- alence countries. It's contribut- ing substantial funds to UNICEF and the Royal Commonwealth Society as well as raising aware- ness and generating dialogue about ending the practice. The Department of Justice is tackling the problem within Canada's borders. It has provid- ed a multi-year grant of almost $150,000 to the South Asian Le- gal Clinic of Ontario in an effort to increase education and aware- ness by expanding existing legal materials and providing training. The clinic first brought the is- sue to the forefront with its 2013 report on the incidence of forced marriage in Ontario. Deepa Mat- too, a staff lawyer at the clinic and co-author of the report, says the issue first arose in the organiza- tion's casework. After organizing a symposium, the clinic produced Canada's first tool kit on forced marriage for agencies dealing with cases in this country. It also set up a web site and a network of about 70 agencies. But that wasn't enough, according to Mattoo. "We decided to get a better envi- ronment to address the issue. We needed tangible data." To that end, the organization sent out surveys in 2011 and 2012 that informed the 2013 report. That exercise identified 219 re- ported cases between 2010 and 2012 with 97 per cent of the vic- tims being women. Mattoo has just returned from training sessions in Alberta for lawyers, police officers, social services staff, and child protec- tion workers as part of a national tour of the materials. The clinic is also preparing a risk assess- ment tool it will pilot through entry points such as hospitals, schools, and victims services. "A lot of forced marriages don't get captured because peo- ple aren't screening for it," says Mattoo. "We are using the cur- rent training to identify a pool of people to buy into the pilot. It is not designed to replace current screening but to infuse the tool into the current process." Mattoo notes that screening methods are usually Eurocentric with a focus on intimate partner abuse and child abuse. "They are not f lagging abuse from parents, communities, and more than one perpetrator," she says. Victims of forced marriages also have enormous difficulty accessing normal support ser- vices. Because "forced marriage" doesn't fit within the legal defini- tion of domestic violence, victims can't access shelters, housing, counselling or social assistance and have trouble dealing with po- lice, border security, consulates, and hospitals due to issues such as parental consent. The victims are usually in the 16-34 age group, meaning they don't come under child protection laws. The Department of Justice re- cently created a working group on forced marriage and is consider- ing legislative changes. The South Asian clinic is hoping criminaliza- tion won't be among the changes. Many European countries have created a separate offence for forced marriage, but the clinic be- lieves that would be counterpro- ductive and unnecessary. Although its report found all of the individuals forced into marriage experienced violence or threats of some kind, clients con- sistently express concern about getting family members into trou- ble. The report found victims in- dicated they'd be less likely to seek help if it would result in criminal consequences for family members. "There is enough in the Criminal Code which can help those who are victimized and face violence," says Mattoo. She points to the Alberta Court of Appeal case of R. v. Bandesha as one of the rare ex- amples of criminal charges. In that case, four family members had assaulted the victim in her own home. Two of the perpetra- tors ultimately received jail sen- tences. The court said: "In some cultures, women are not free to choose or reject a prospective spouse. That sort of coercion is abhorrent to Canadian society, and physical beatings to enforce such coercion are doubly ab- horrent. When a competing set of cultural values lead to such illegal physical coercion in Can- ada, denunciation is necessary." Mattoo says Bandesha shows how the Criminal Code can ap- ply to the situation. "If it is crimi- nal, it should be taken as seriously as spousal or child abuse. There is no need for additional law." LT FOCUS Introducing the new CriminalSource ™ on WestlawNext ® Canada. Nothing else compares. The new CriminalSource™ is home to Canada's largest collection of case law, annotations, and commentary from criminal law experts – all presented to you in every search. 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