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Canada: Forced marriage, Is it a crime? A legal issue dealt with abroad now emerges in Canada

Publication Date: 
August 31, 2012

Shafilea Ahmed drank bleach after her parents drugged her and dragged her onto a plane to Pakistan where they planned to marry her to a much older man.

The 17-year-old’s desperate ploy succeeded in getting her sent back home to Britain where she spent eight weeks in hospital. Tragically, it didn’t save her life: Seven months later Shafilea was dead, suffocated by her parents, who forced a plastic bag down her throat in front of her siblings as a warning against them acquiring their sister’s “western” habits.

This month, a British court jailed the Pakistani-born couple for life for the apparent “honour” killing.

The horrific crime has put a spotlight on Britain’s recently announced plans to make “forced marriage” a standalone crime — separate from existing offences it may also involve.

In Canada, coerced marriages are barely on lawyers’ radar, but legal observers say they are an emerging legal problem in western nations, particularly those with growing immigrant populations from South Asia, Africa and the Middle East.

Deepa Mattoo, a South Asian Legal Clinic staff lawyer in Toronto who has extensive experience with the problem of forced marriage, argues that Canada should not follow Britain in criminalizing such marriages because doing so would stigmatize, and cast suspicion on, communities already overrepresented in the criminal justice system. 

 “We feel there is a threat for the unjust targeting of communities,” Mattoo explained.

Expressing a concern also voiced by Britain’s government, she said criminalizing forced marriage also risks driving the problem underground.

“We know, dealing with the cases on the ground, that sometimes women know well what could be their fate and they still go ahead and do it, because they love their families, their own brothers, their father, and their sisters and they’re not going to come out to criminalize them,” she said. “You will basically shut down a lot of women from seeking help because they know, once they try to go to the [police] and get their, say father, arrested, that relationship is going to go away.”

Justice Minister Rob Nicholson’s press secretary, Julie Di Mambro, declined to say whether Ottawa is considering creating a free-standing “forced marriage” offence.

She added, however, that the Criminal Code already has “several provisions that may be used to address forced marriages.”

Forced marriage is frequently confused with “arranged” marriage. However, in the latter, the prospective spouses consent to the arrangements made by their families. In forced marriages, one or both spouses do not — or cannot in the case of minors or vulnerable adults — consent to the marriage. The coercion and duress can involve such major crimes as kidnapping, assault, forcible confinement, and uttering threats, according to police and prosecution authorities here and abroad. There can also be psychological pressure, such as a girl being told that if she does not agree to marry, she will dishonour her family and will never see her parents or siblings again.

Over the past five years, the Department of Justice has been working behind the scenes on the forced marriage issue. It has commissioned research, funded public education by community-based justice and social service providers, and run four workshops with Crowns, police and frontline service providers on issues around so-called “honour”-based violence — ​including presentations from leading British experts.

Over the past decade, Norway, Germany and other European nations have moved to make forced marriage a specific criminal offence. Britain announced June 8 that it will criminalize it in the near future. 

Denouncing the practice as “abhorrent” and “little more than slavery,” Prime Minister David Cameron declared: “I want to send a clear and strong message: forced marriage is wrong, is illegal and will not be tolerated.” 

In Britain, an estimated 8,000 people are affected each year — in 2010, they ranged in age from 12 to 73.

So far, no solid numbers are publicly available in Canada — the DOJ declines to disclose anecdotal studies it did several years ago in Toronto, Montreal and Western Canada.

But an internal DOJ briefing note prepared last summer for Nicholson that was released under theAccess to Information Act states that forced marriages “affect a surprisingly high number of Canadians, including minors, from a wide range of countries of origin.” 

The redacted documents also reveal that DOJ has prepared policy options for Nicholson to address so-called “honour” crimes, which can include forced marriage. Family honour appears to have been a motivating factor in at least 13 homicides in Canada in the past decade.

DOJ spokeswoman Carole Saindon told The Lawyers Weekly that Canada is committed, under a number of international conventions, to preventing early and forced marriage. She said Justice Canada is updating a publication for newcomers to Canada that will be available online in 12 languages by the end of the year. It will specifically address forced marriage and “honour” based violence.

Osgoode Hall law criminal law professor Alan Young said the issue of criminalizing forced marriage may come down to symbolism: Do we want to single it out so people realize it’s wrong? 

“One can only really assess whether that’s good public policy when you have some empirical information about the frequency and prevalence. Obviously, you don’t necessarily create a new criminal offence because three people a year may be falling into the situation.”

Young suggested there is no gap in the existing criminal law. Emotional duress by itself — such as a parent threatening to banish a young adult from the family if he or she refuses to marry — is “horrible, but not criminal, in my opinion,” he said. 

“You are entitled in law, and morally, to withdraw your affection for somebody if they don’t do what you want — there’s nothing the law can do about that. What the problem will be is: ‘How do you define coercion so you’re not just capturing…nasty families that push each other around?’ ”

Mattoo of the South Asian Legal Clinic said that before Ottawa even considers criminalizing forced marriage, resources must be dedicated to educating people about the problem and consulting broadly with affected communities. “A lot of our communities don’t even understand — the area is so gray…what they are doing is actually a step further than arranged marriages. So they are themselves not clear about when they are crossing the line.”

How Britain deals with forced marriage

Britain plans to criminalize forced marriage, but the government admits there is no proof a new offence is needed or will be salutary. “It is not clear whether there is a gap in the current law and hence what impact a new criminal offence of forced marriage would have to the volume of future cases,” says the Home Office’s candid “impact assessment” issued last April. “There is a risk that a new offence of forcing someone to marry would lead to the practice of forced marriage going underground or the problem being taken overseas. There may be some potential benefits to future victims if the message sent out by criminalizing forced marriage has the effect of deterring individuals from forcing or luring people into forced marriages. However, the evidence of the existence and scale of a deterrent effect is mixed.” 

The British government argues criminalizing forced marriage sends a strong public message that it is socially and legally wrong. Victims and victims’ parents will be able to use the law as a bargaining chip to negotiate with relatives who are pressing them to coerce their child into marriage. It would fill a possible loophole with respect to emotional and psychological pressure.

Britain has been on the cutting edge of the issue — beginning work on it in 1999. In 2007, it enacted theForced Marriage (Civil Protection) Act, which provides for civil protection orders that can include provisions not to threaten, harass or use force; to surrender a person’s passport; and not to enter into any arrangements for the engagement or marriage of a person. Those who breach civil protection orders are currently dealt with under the law of contempt of court (punishable by up to two years’ imprisonment), but future breaches will be criminalized under the planned reforms. 
In a consultation this year, 80 per cent of respondents believed the present civil remedies and contempt sanctions were not being used effectively and 54 per cent (including the Law Society) believed a criminal offence should be created (37 per cent did not).

Last year, Britain’s Forced Marriage Unit, a joint initiative of the Foreign and Home Offices, provided advice or support in almost 1,500 cases of possible forced marriage — 78 per cent female victims and 22 per cent male. There were 23 people convicted of a crime flagged as forced marriage-related in 2010-2011.