Give the Conservatives credit for this much: Nobody makes more creative use of criminal law. Most governments pass laws to punish crimes. The Conservatives pass laws to send messages.

The Conservatives want to send a message — that they are utterly opposed to “barbaric practices” such as honour killings. So they’ve introduced a law — Bill S-7 — intended to send that message. And on the off-chance someone out there might miss the message, they’ve entitled it the “Zero Tolerance for Barbaric Cultural Practices Act.”

Bill S-7 — introduced earlier this month — is necessary legislation, according to Immigration Minister Chris Alexander. And so it is necessary — to the business of pandering to those in the party’s base who are fearful of foreigners, to the business of keeping the fear dial set to 11 between now and the election. But necessary for the protection of the public? Hardly. S-7 is just another solution in search of a problem.

The bill would bar people in polygamous and forced marriages from immigrating to Canada. Alexander has said provisions in the bill will do away with the ability of perpetrators in honour killings to use provocation or cultural differences as mitigating factors.

Let’s set aside how that’s expected to work in the current immigration system and concentrate on how the bill will end up toppling a principle of criminal law in this country: the defence of provocation.

Currently, section 232 of the Criminal Code provides for the defence of provocation, which reduces the charge of murder to manslaughter where the accused acted “in the heat of passion”. Provocation requires that there be a wrongful act or insult that would be sufficient to deprive an ordinary person of the power of self-control.

There are limits, of course. One cannot be legally provoked by someone who is doing something that he or she had a legal right to do, or by someone doing something that the accused incited him or her to do.

And provocation is not a complete defence. To claim provocation is to admit to manslaughter and accept the corresponding punishment — up to life imprisonment.

The provocation defence reflects a recognition of mitigating circumstances. Provocation is an allowance made for human frailty which recognizes that a killing — even an intentional one — may be accompanied by a complete loss of self­-control that makes the act less heinous than an intentional killing by someone acting with rational intent.

Provocation does not apply to honour killings. Provocation has never applied to honour killings. Cultural factors in such cases typically are seen as motives — not as a defence. Is it too much to expect a cabinet minister who’s monkeying with the Criminal Code to actually read the case law?

Take, for example, the case of a father whose daughter is a victim of a violent crime. Imagine the father is accosted by his daughter’s attacker. Imagine the assailant replies with taunts, mockery and physical assault — and the father loses control and kills the assailant. Provocation.

Alexander’s bill seeks to change this principle of criminal law and severely limit the application of provocation by replacing the requirement of a “wrongful act or insult” with “conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment”.

Thus, criminal assaults are no longer provocative enough for provocation — not even when combined with vulgar or racist insults.

Why limit the defence of provocation? There is no evidence at all that it’s being abused or misapplied — not that evidence matters much when it comes to this government and criminal law. But the government obviously saw an opportunity here to exploit a tragic crime.

The Toronto Star reports that Alexander cited the case of Mohammad Shafia as justification for the changes. Shafia is an Afghan immigrant who killed three of his daughters and the girls’ stepmother for religious reasons — a so-called honour killing.

But Shafia was convicted of four counts of first degree murder. Alexander’s law would not have applied to his case.

In fact, in 2006 the Ontario Court of Appeal upheld a similar conviction for first degree murder and denounced honour killings in language even Alexander should be able to understand:

If an accused relies on religious and cultural beliefs to support a provocation defence, the trial judge must carefully instruct the jury as to the distinction between a homicide committed by one who has lost control and a homicide committed by one whose cultural and religious beliefs lead him to believe that homicide is an appropriate response to the perceived misconduct of the victim. Only the former engages the defence of provocation. The latter provides a motive for murder.

Provocation does not apply to honour killings. Provocation has never applied to honour killings. Cultural factors in such cases typically are seen as motives — not as a defence. Is it too much to expect a cabinet minister who’s monkeying with the Criminal Code to actually read the case law? Or would exposure to the facts just short-circuit the ideology?

By slipping major — and completely unnecessary — changes to the Criminal Code into an immigration bill and then hiding behind the rhetoric of “barbaric cultural practices” and honour killings, Alexander does a great disservice to our legal culture and the democratic process.

Major changes to criminal law must be made in a transparent and honest manner. There must be an open debate based on evidence. Anything else would be … barbaric.

Michael Spratt is a well-known criminal lawyer and partner at the Ottawa law firm Abergel Goldstein & Partners. He has appeared in all levels of court and specializes in complex litigation. Mr. Spratt is frequently called upon to give expert testimony at the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs. He is a past board member of the Criminal Lawyers’ Association and is on the board of directors of the Defence Counsel Association of Ottawa. Mr. Spratt’s continuing work can be found at www.michaelspratt.com and on twitter at @mspratt

The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.