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Archived - Comparative overview of proposed changes in the Zero Tolerance for Barbaric Cultural Practices Act

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BEFOREAFTER
Polygamy—Current admissibility provisions under the Immigration and Refugee Protection Act (IRPA)Polygamy—proposed amendments to admissibility provisions under IRPA
Permanent resident

In the permanent residency stream, a foreign national, when entering Canada and becoming a permanent resident, is permitted to have only one spouse. This requires an individual in a polygamous relationship to convert their marriage to a monogamous relationship.

Some permanent resident applicants may try to circumvent the system by taking on an additional spouse at a later date, after they arrive in Canada.

In Canada, the permanent resident could only be found inadmissible for practising polygamy if they are convicted in Canada of the criminal offence described under section 293 of the Criminal Code and receive a term of imprisonment of more than six months. A permanent resident may also be found inadmissible for misrepresentation under immigration law, if they lied about being involved in a polygamous relationship when they became a permanent resident.

In the permanent residency stream, a foreign national who practises polygamy would still be required to convert their polygamous marriage to a monogamous one or be barred from becoming a permanent resident.

However, once in Canada, a permanent resident who starts or resumes a polygamous relationship could be found inadmissible on this basis alone, without requiring evidence that the person misrepresented their situation or has a criminal conviction. If found to be inadmissible, the person could then be subject to removal.

Temporary resident

A temporary resident who practises polygamy in their country of origin is generally allowed to enter with only one spouse at the time of seeking entry.

A foreign national seeking temporary residence will be found inadmissible if they try to enter Canada with even one spouse.

Civil Marriage Act

Legal requirements to marry

The legal requirement for free and enlightened consent to marriage is currently contained in federal legislation that applies in the Province of Quebec only and in common law (court decisions) for residents of other provinces and territories.

The minimum age of 16 for marriage, below which no marriage can be contracted, is currently contained in federal legislation that applies in the Province of Quebec only. For the other provinces and territories, the minimum age is not currently provided for in federal legislation and there is some debate about the minimum age in common law, with some establishing the age at 12 for girls and 14 for boys, and others at age seven for all.

The legal clarification that any previous marriage must be dissolved prior to a new marriage is currently contained in federal legislation that applies in the Province of Quebec only. (The requirement for monogamy already exists nationally in section 4 of the Civil Marriage Act and is reflected in sections 290, 291 and 293 of the Criminal Code.)

The legal requirement for free and enlightened consent to marriage would now apply nationally to all Canadian residents.

A new national minimum age of 16 for marriage, below which no marriage can be contracted, would now apply to all Canadian residents. Legislation in the provinces and territories may set out additional requirements, such as parental consent and consent of the court, for marriages between the national minimum age and the age of majority.

The legal clarification that any previous marriage must be dissolved prior to a new marriage would now apply nationally to all Canadian residents.

Criminal Code

Early and forced marriage

Family members can employ a range of techniques to force a marriage onto an unwilling person, both in the time leading up to the marriage and possibly also in connection with the marriage ceremony itself. Family members may also engage in similar conduct to cause an underage child to marry. Wherever the conduct involved amounts to an existing criminal offencesuch as uttering threats, assault or forcible confinementit is subject to prosecution. 

Removal of child from Canada

In a situation of a forced or early marriage, family members could be prosecuted for taking steps to remove a child from Canada if the Crown could prove that they did so with the knowledge that, following a forced or early marriage ceremony abroad, the child would be subjected to a sexual offence. 

Peace bond

Where there are reasonable grounds to fear that a personincluding family memberswill cause personal injury to another person, they can be brought to court and ordered to enter into a peace bond (or court order) to keep the peace and be of good behaviour. Other conditions can be imposed, including that the person have no contact with the person who fears for their safety. A person subject to a peace bond could be prosecuted if they breach the order.

Provocation defence

A person who is found to have committed murder can raise the defence of provocation where they killed the victim in the “heat of passion” brought on by a “wrongful act or insult” from the victim that would be sufficient to cause an ordinary person to lose self-control. Individuals who are prosecuted for murder in so-called “honour” killings can raise the defence, if they allege that the victim’s conduct was so insulting and offensive to them and/or to their family’s reputation that it caused them to kill in a state of rage.

Where successful, provocation is a defence for murder that results in a conviction for manslaughter. Manslaughter carries a maximum punishment of life in prison and no minimum punishment except if a firearm was used (four years). 

Family members and others would be subject to prosecution where they actively and knowingly participate in a forced or early marriage ceremony, such as by transporting an unwilling or underage daughter to the ceremony or acting as a legal witness. A person who knowingly performs a forced or early marriage ceremony would also be subject to prosecution.

Family members and others would be subject to prosecution where they take steps to remove a child from Canada specifically with the intent that they be subjected to a forced or early marriage abroad. The Crown would not have to prove that the family knew there would be a sexual offence following the marriage.  

Where there are reasonable grounds to believe that a person will specifically aid or participate in a forced or early marriage ceremony involving someone else (for example, their child), or will take a young person out of Canada for the purposes of a forced or early marriage ceremony abroad, they could be brought to court and ordered to enter into a peace bond to keep the peace and be of good behaviour. A court would be empowered to make orders that could be particularly useful in specifically preventing an early or forced marriage, whether in Canada or abroad, such as ordering the person to surrender travel documents, to refrain from making arrangements or agreements in relation to the marriage, or to participate in a family violence counselling program. 

The provocation defence would only be available to an accused found guilty of murder where the conduct of the victim that provoked the accused to kill amounted to a criminal offence punishable by five years or more in prison could qualify. 

A victim’s personal choices about lifestyle or dating or marriage partners, including where such choices were conveyed in a manner perceived as insulting, could not qualify as provocation for the purposes of providing a defence to murder. 

Consequential amendments

Criminal Code

Paragraph 150.1(2.1)(b) of the Criminal Code provides an exception from criminal liability for what would otherwise be the listed sexual offences involving a child between the ages of 14 and 16 years if the complainant and the accused are married.

Prisons and Reformatories Act

Section 2 of the Prisons and Reformatories Act provides a definition of “prisoner,” which in turn permits such persons to be lawfully held in a provincial jail. 

Youth Criminal Justice Act

Subsection 14(2) of the Youth Criminal Justice Act gives jurisdiction to a youth justice court to make orders against young persons under the peace bond provisions of the Code. 

Subsection 142(1) of the Youth Criminal Justice Act provides that the provisions of Part XXVII of the Criminal Code apply to proceedings in respect of peace bonds against young persons.

The bill proposes to repeal paragraph 150.1(2.1)(b) of the Criminal Code, to match the proposed amendments to the Civil Marriage Act, which will prohibit marriages below the age of 16.

A person who breaches conditions imposed as part of a peace bond, including the new peace bond where there is a fear that they may commit a forced or early marriage offence, could be lawfully held in a provincial jail.

A youth justice court would also have jurisdiction to impose a new peace bond where there is a fear that a young person may commit a forced or early marriage offence.

The new peace bond to prevent forced or early marriage, when ordered against a young person, would be governed by the provisions of Part XXVII of the Criminal Code as is the case for other peace bonds. 


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