On November 5, 2014, the Leader of the Government in the Senate introduced Bill S-7, 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, otherwise known as the Zero Tolerance for Barbaric Cultural Practices Act (“Bill S-7“).
Bill S-7 has mainly received media attention because of its arguably inflammatory title. The actual significant impacts for prospective immigrants and practitioners are:
|Practising polygamy does not result in a foreign national or permanent resident being inadmissible to Canada.||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.|
|Marriage requires the free and enlightened consent of two persons to be the spouse of each other.|
|No person who is under the age of 16 years may contract marriage.|
|There will be a new offence that 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.|
|There will be a new offence that 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.|
|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.|
Speaking before the Standing Committee on Citizenship and Immigration, Chris Alexander, the Minister of Citizenship and Immigration (the “Minister“), stated:
Polygamy would be added to that very limited set of inadmissibilities. It would provide immigration officers with the tools they need to render both temporary and permanent residents inadmissible for practising polygamy. The new inadmissibility would mean that those entering on a temporary basis who are in polygamous marriages abroad would be able to enter only on their own.
It also means that permanent residents found to be in a polygamous marriage will be removed on that basis alone. In other words, if someone applied for immigration and received permanent residence without informing authorities of the reality of their situation, and were found to be in a polygamous union, they would be removed. We would no longer need a criminal conviction or a finding of misrepresentation in order to begin deportation proceedings.
When asked how this would affect permanent residents who are now practicing polygamy in Canada, the Minister stated:
First of all, I think the point you’ve just made is that the long-standing criminalization of polygamy in Canada points to the fact that it has been a phenomenon in Canada for some time. That point reminds us of Bountiful, British Columbia, and some other communities across the country. It is absolute proof of the fact that there is no racial or xenophobic aspect to this. Polygamy is a practice that can be found in Canada, among people born here who have been here for generations, as well as among newcomers.
Polygamy is legal, to one extent or another, in over 60 countries around the world, and there have been recorded cases of polygamy involving Christians, Muslims, and Hindus. Anyone from the opposition side who says that one group or another is being targeted by this is absolutely wrong, and any cultural community in Canada that makes that claim is wrong. We know from our consultations that most cultural communities, particularly women, welcome protection from polygamy, as they welcome protection from forced and early marriage. That is why they came to Canada.
Now, what does the bill do? It essentially says that instead of having to have a criminal conviction for polygamy—and we know there have been nine of those in over a hundred years, although there are some cases under way today—or a finding of misrepresentation, which is a very high threshold of administrative proof in our immigration system, we will now, instead of meeting those very onerous thresholds, simply have to have an immigration officer satisfied by the evidence before them as they examine the file that polygamy has been practised. That in itself would be grounds for removal, just as a finding that someone, after immigrating to Canada, has been convicted of murder in their home country or has been a génocidaire in Rwanda would be grounds for removal. Polygamy will now be similar grounds.
On your question of peace bonds, I should add that there are some orders the court could give that haven’t yet been mentioned. The family could be ordered to refrain from making arrangements or agreements in relation to the marriage. They could also be ordered to participate in a family violence counselling program. There are some preventative aspects to a peace bond as well.
Are the Polygamy Provisions of the Bill Necessary?
Several organizations have questioned whether the polygamy provisions of Bill S-7 are necessary. The Canadian Bar Association, for example, has written:
Practising polygamy is an offence under the Criminal Code of Canada. In the current immigration context, s. 117(9)(d) of the Immigration and Refugee Protection Regulations (IRPR”) further provides that:
(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
(c) the foreign national is the sponsor’s spouse and
(i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person, or
(ii) the sponsor has lived separate and apart from the foreign national for at least one year and
(A) the sponsor is the common-law partner of another person or the sponsor has a conjugal partner, or
(B) the foreign national is the common-law partner of another person or the conjugal partner of another sponsor; or
The Spouse and Common-Law Partner in Canada Class contains similar provisions, as does IRPR r. 5, which essentially prohibits accompanying spouses in polygamous relationships. These sections all prohibit a second (or third, etc.) wife from being recognized as a spouse and provides that only the first marriage may potentially be recognized for immigration purposes. Furthermore, the Citizenship and Immigration Canada (“CIC”) Guidelines sets out that in polygamous cases, in order for the first marriage to be recognized as legally valid under Canadian law, the couple must live together in a monogamous relationship in Canada. A polygamous marriage can be converted into a monogamous relationship provided that the couple live together in a monogamous relationship from the time of arrival in Canada. A polygamous second (or third, etc.) marriage cannot be converted to one of monogamy. If a husband wishes to sponsor a wife other than his first as a spouse, he must divorce his other wives and remarry the chosen wife. The children born from the second or subsequent marriages, however, can be included in a permanent residence application if they meet IRPR’s definition of dependent. Finally, a person who immigrates to Canada who practices polygamy but does not disclose all of their conjugal relationships may be found inadmissible for misrepresentation.
A Note on Bountiful, British Columbia
Much of the discourse around Bill S-7 has focused on the Muslim community. However, one of the first communities that may be impacted is the community of Bountiful in British Columbia, a small allegedly polygamous community in south-eastern British Columbia. Indeed, as noted above, the Minister specifically referenced Bountiful when speaking to the Standing Committee on Citizenship and Immigration. Finally, as the internal e-mail obtained through an Access to Information Act request shows, CIC as early as 2012 started examining its role in the continued existence of the remote community.
The PDF below contains useful internal slides summarizing Bill S-7.