Law Times

Law Times • December 1, 2014 Page 3 www.lawtimesnews.com Lawyers alarmed at barbaric cultural practices act By yamri Taddese Law Times he zero tolerance for barbaric cultural prac- tices act, a mouthful as far as legislative titles go, is getting some unsavoury reviews from human rights law- yers who are starting their criti- cism with the name the govern- ment has given the bill. Since Immigration Minister Chris Alexander introduced the bill last month, a lot of the focus on the bill has been on the title itself. WeirFoulds LLP partner Raj Anand calls it "unnecessar- ily provocative." The bill, introduced last month, "demonstrates that Canada's openness and generos- ity does not extend to early and forced marriage, polygamy or other types of barbaric cultural practices," according to the gov- ernment. Under it, the government would amend five statutes to address issues like polygamy through, for example, the cre- ation of a new polygamy-specif- ic inadmissibility provision in the Immigration and Refugee Protection Act. There are also amendments to the Criminal Code, includ- ing the creation of a new of- fence prohibiting the active and knowing participation in a forced marriage ceremony. But Anand says it's wrong for the bill to ascribe these practices to immigrants. "If this is a problem, this is a Canadian problem," he says, adding the only case of polyga- my he has known to have gone to court involved Canadian citi- zens in western Canada. "Why target immigrants with this? Why call it barbaric cultural practices unless we're talking about Canadian culture?" Another lawyer, Ranjan Agarwal of Bennett Jones LLP, says the name of the bill casts "an entire community's cultural beliefs under the rubric of bar- barism." "It puts some communi- ties at unease that this act is re- ally being aimed at or geared towards some very traditional practices. When you're calling them barbaric cultural practices and you're talking about forced marriages and polygamy, most Canadians' minds go to Muslim, South Asian, African or Middle Eastern communities. I think optically, it puts those commu- nities on the defence." Agarwal says there are rea- sonable elements to the act, in- cluding the ban on forced mar- riages and the clarification of 16 as the minimum age for getting married. It also makes it illegal to transport a child under 16 over- seas for the purpose of marriage. "I think even the critics would agree that all of those are gener- ally reasonable elements and go a long away," says Agarwal. The sting in the name of the bill seems to target polygamy and honour killings, according to Agarwal. "That's where, sub- stantively, I take issue with the bill because polygamy is already outlawed in Canada and the fact that there have been some chal- lenges to the polygamy provi- sions of the Criminal Code and the fact that the government is not prosecuting what's happen- ing in Bountiful, [B.C.], is a sepa- rate issue," he says. "The constitutionality of Canada's polygamy law has been upheld. This isn't a case where you can't outlaw something through the Criminal Code, so you try to deal with it through immigration. The Criminal Code is there, and presumably you can prosecute someone who is in a polygamous marriage." Honour has also stood no chance as a defence for end- ing someone's life, according to Agarwal. Anand says the number of cases involving the practices targeted by the bill are "few and far between and it's not a signifi- cant problem in Canada." Karlee Anne Sapoznik, presi- dent of the Alliance Against Modern Slavery, disagrees that these practices aren't a signifi- cant problem here. Sapoznik, who has been doing research on forced marriages in Canada, says that since 1948, there have been "at least" 5,000 cases. With the civil liberties move- ments of the 1960s and '70s and former prime minister Pierre Trudeau's famous remark that "there's no place for the state in the bedrooms of the nation," governments have looked away from the marriages of the nation, according to Sapoznik. "It's certainly an issue at home. We need to start looking at our own backyards," she says. "For decades, we've tended to believe that this is something that only happens abroad when in fact it has been happening at home. We have cases that go back to the residential schools where some religious and gov- ernment officials perpetuated forced marriages. We also have cases in Catholic communities and Jewish communities and many different ones." Sapoznik says while issues like forced marriage are a real concern in Canada, the ap- proach taken by the newly in- troduced bill actually runs the risk of further driving them un- derground. "My concern, too, is that in communities that are already discriminated or marginalized on the basis of their race or be- cause they are immigrants, we're seeing a phenomenon where the victims, which are by and large women and girls, are not want- ing to come forward because there is this fear of their men be- ing discriminated against fur- ther." While the bill specifically tar- gets forced marriage, "if you lis- ten to the community, that's not necessarily what we need," adds Sapoznik. Like some lawyers, she says the language used in the act is "quite alarming." "It tends to speak to the ste- reotype that this is a brown or immigrant or Muslim issue when in fact when you look at the data, we see cases in many communities, some of which are long-standing Canadian com- munities," she says. "We need to look at the com- monalities between the differ- ent cultures and communities instead of targeting certain communities. I think we need to look at this as an issue of vio- lence against women and girls, an issue of domestic violence." Others, meanwhile, have nothing but praise for the pro- posed bill. "I'm all for this leg- islation. It's long overdue," says Gwen Landolt of the conser- vative women's group REAL Women of Canada. "The focus of it is to protect the dignity of women." LT NEWS Recognizing the best in Canadian deal-making The Canadian Dealmakers program is committed to recognizing excellence in deal-making. Come and celebrate at the 8th annual Canadian Dealmakers awards gala. This event brings together the who's who of corporate executives, deal teams and advisors to recognize dealmakers who have impacted their industry and have strategically positioned their business for innovation, growth, globalization and diversification. 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Scott Thomson President & CEO, Finning International Inc. Frank Vettese Managing Partner & Chief Executive, Deloitte Canada Paul Waldie Editor, Report on Business, The Globe and Mail Founding partners Gold sponsor Silver sponsor Bronze sponsor Net proceeds go to support Untitled-5 1 2014-11-26 9:37 AM T

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