Zero Tolerance for Barbaric Cultural Practices Act (S.C. 2015, c. 29)

Assented to 2015-06-18

Zero Tolerance for Barbaric Cultural Practices Act

S.C. 2015, c. 29

Assented to 2015-06-18

An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts

SUMMARY

Part 1 amends the Immigration and Refugee Protection Act to specify that a permanent resident or foreign national is inadmissible on grounds of practising polygamy in Canada.

Part 2 amends the Civil Marriage Act to provide for the legal requirements for a free and enlightened consent to marriage and for any previous marriage to be dissolved or declared null before a new marriage is contracted. Those requirements are currently provided for in the Federal Law — Civil Law Harmonization Act, No. 1 only in respect of Quebec and under the common law in the other provinces. It also amends the Civil Marriage Act to provide for the requirement of a minimum age of 16 years for marriage. This requirement is currently provided for in the Federal Law — Civil Law Harmonization Act, No. 1 only in respect of Quebec.

Part 3 amends the Criminal Code to

  • (a) clarify that it is an offence for an officiant to knowingly solemnize a marriage in contravention of federal law;

  • (b) provide that it is an offence to celebrate, aid or participate in a marriage rite or ceremony knowing that one of the persons being married is doing so against their will or is under the age of 16 years;

  • (c) provide that it is an offence to remove a child from Canada with the intention that an act be committed outside Canada that, if it were committed in Canada, would constitute the offence of celebrating, aiding or participating in a marriage rite or ceremony knowing that the child is doing so against their will or is under the age of 16 years;

  • (d) provide that a judge may order a person to enter into a recognizance with conditions to keep the peace and be of good behaviour for the purpose of preventing the person from committing an offence relating to the marriage of a person against their will or the marriage of a person under the age of 16 years or relating to the removal of a child from Canada with the intention of committing an act that, if it were committed in Canada, would be such an offence; and

  • (e) provide that the defence of provocation is restricted to circumstances in which the victim engaged in conduct that would constitute an indictable offence under the Criminal Code that is punishable by five years or more in prison.

Finally, the enactment also makes consequential amendments to other Acts.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

 This Act may be cited as the Zero Tolerance for Barbaric Cultural Practices Act.

PART 12001, c. 27IMMIGRATION AND REFUGEE PROTECTION ACT

Amendment to the Act

 The Immigration and Refugee Protection Act is amended by adding the following after section 41:

Marginal note:Polygamy
  • 41.1 (1) A permanent resident or a foreign national is inadmissible on grounds of practising polygamy if they are or will be practising polygamy with a person who is or will be physically present in Canada at the same time as the permanent resident or foreign national.

  • Marginal note:Interpretation

    (2) For the purposes of subsection (1), polygamy shall be interpreted in a manner consistent with paragraph 293(1)(a) of the Criminal Code.

Coming into Force

Marginal note:Order in council

 This Part comes into force on a day to be fixed by order of the Governor in Council.

PART 22005, c. 33CIVIL MARRIAGE ACT

 The Civil Marriage Act is amended by adding the following after section 2:

Marginal note:Consent required

2.1 Marriage requires the free and enlightened consent of two persons to be the spouse of each other.

Marginal note:Minimum age

2.2 No person who is under the age of 16 years may contract marriage.

Marginal note:Previous marriage

2.3 No person may contract a new marriage until every previous marriage has been dissolved by death or by divorce or declared null by a court order.

Marginal note:2013, c. 30, s. 3

 Subsection 5(3) of the English version of the Act is replaced by the following:

  • Marginal note:Order dissolving marriage

    (3) Any court order, made in Canada or elsewhere before the coming into force of this subsection, that declares the marriage to be null or that grants a divorce to the spouses dissolves the marriage, for the purposes of Canadian law, as of the day on which the order takes effect.

PART 3R.S., c. C-46CRIMINAL CODE

Amendments to the Act

Marginal note:2008, c. 6, s. 13(1)
  •  (1) Subsection 150.1(2.1) of the Criminal Code is replaced by the following:

    • Marginal note:Exception — complainant aged 14 or 15

      (2.1) If an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

      • (a) is less than five years older than the complainant; and

      • (b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

  • (2) Section 150.1 of the Act is amended by adding the following after subsection (2.2):

    • Marginal note:Exception for transitional purposes

      (2.3) If, immediately before the day on which this subsection comes into force, the accused referred to in subsection (2.1) is married to the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge.

  •  (1) Subsection 232(2) of the Act is replaced by the following:

    • Marginal note:What is provocation

      (2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

  • (2) Paragraph 232(3)(a) of the Act is replaced by the following:

    • (a) whether the conduct of the victim amounted to provocation under subsection (2), and

 Subsection 273.3(1) of the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):

  • (d) under the age of 18 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.1 in respect of that person or under the age of 16 years, with the intention that an act be committed outside Canada that, if it were committed in Canada, would be an offence against section 293.2 in respect of that person.

 The Act is amended by adding the following after section 293:

Marginal note:Forced marriage

293.1 Everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is marrying against their will is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Marginal note:Marriage under age of 16 years

293.2 Everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is under the age of 16 years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

 Section 295 of the Act is replaced by the following:

Marginal note:Marriage contrary to law

295. Everyone who, being lawfully authorized to solemnize marriage, knowingly solemnizes a marriage in contravention of federal law or the laws of the province in which the marriage is solemnized is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

 The Act is amended by adding the following after section 810.01:

Marginal note:Fear of forced marriage or marriage under age of 16 years
  • 810.02 (1) A person who fears on reasonable grounds that another person will commit an offence under paragraph 273.3(1)(d) or section 293.1 or 293.2 may lay an information before a provincial court judge.

  • Marginal note:Appearances

    (2) The judge who receives the information may cause the parties to appear before a provincial court judge.

  • Marginal note:Adjudication

    (3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period of not more than 12 months.

  • Marginal note:Duration extended

    (4) However, if the provincial court judge is also satisfied that the defendant was convicted previously of an offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period of not more than two years.

  • Marginal note:Refusal to enter into recognizance

    (5) The provincial court judge may commit the defendant to prison for a term not exceeding 12 months if the defendant fails or refuses to enter into the recognizance.

  • Marginal note:Conditions in recognizance

    (6) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that

    • (a) prohibit the defendant from making agreements or arrangements for the marriage, whether in or outside Canada, of the person in respect of whom it is feared that the offence will be committed;

    • (b) prohibit the defendant from taking steps to cause the person in respect of whom it is feared that the offence will be committed to leave the jurisdiction of the court;

    • (c) require the defendant to deposit, in the specified manner, any passport or any other travel document that is in their possession or control, whether or not such passport or document is in their name or in the name of any other specified person;

    • (d) prohibit the defendant from communicating, directly or indirectly, with any specified person, or refrain from going to any specified place, except in accordance with any specified conditions that the judge considers necessary;

    • (e) require the defendant to participate in a treatment program, including a family violence counselling program;

    • (f) require the defendant to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge; and

    • (g) require the defendant to return to and remain at their place of residence at specified times.

  • Marginal note:Conditions — firearms

    (7) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies.

  • Marginal note:Surrender, etc.

    (8) If the provincial court judge adds a condition described in subsection (7) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession are to be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant are to be surrendered.

  • Marginal note:Variance of conditions

    (9) A provincial court judge may, on application of the informant or the defendant, vary the conditions fixed in the recognizance.

Marginal note:2001, c. 41, s. 23

 The portion of section 811 of the Act before paragraph (a) is replaced by the following:

Marginal note:Breach of recognizance

811. A person bound by a recognizance under section 83.3, 810, 810.01, 810.02, 810.1 or 810.2 who commits a breach of the recognizance is guilty of

Consequential Amendments

R.S., c. P-20Prisons and Reformatories Act

Marginal note:1997, c. 17, s. 39(2)

 The portion of the definition “prisoner” in subsection 2(1) of the Prisons and Reformatories Act after paragraph (b) is replaced by the following:

who is confined in a prison pursuant to a sentence for an offence under a provision of an Act of Parliament or any of its regulations, or pursuant to a committal for failure or refusal to enter into a recognizance under section 810, 810.02, 810.1 or 810.2 of the Criminal Code;

2002, c. 1Youth Criminal Justice Act

 Subsection 14(2) of the Youth Criminal Justice Act is replaced by the following:

  • Marginal note:Orders

    (2) A youth justice court has jurisdiction to make orders against a young person under sections 810 (recognizance — fear of injury or damage), 810.01 (recognizance — fear of criminal organization offence), 810.02 (recognizance — fear of forced marriage or marriage under age of 16 years) and 810.2 (recognizance — fear of serious personal injury offence) of the Criminal Code. If the young person fails or refuses to enter into a recognizance referred to in any of those sections, the court may impose any one of the sanctions set out in subsection 42(2) (youth sentence) except that, in the case of an order under paragraph 42(2)(n) (custody and supervision order), it shall not exceed 30 days.

 Paragraph 142(1)(a) of the Act is replaced by the following:

  • (a) in respect of an order under section 810 (recognizance — fear of injury or damage), 810.01 (recognizance — fear of criminal organization offence), 810.02 (recognizance — fear of forced marriage or marriage under age of 16 years) or 810.2 (recognizance — fear of serious personal injury offence) of that Act or an offence under section 811 (breach of recognizance) of that Act;

Coming into Force

Marginal note:Order in council

 This Part comes into force on a day to be fixed by order of the Governor in Council.

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