I call the Standing Committee on Justice and Human Rights to order. Today is Thursday, March 29, 2007, and our orders of the day are our continued study on , an act to amend the Criminal Code on age of protection and to make consequential amendments to the Criminal Records Act.
We have an impressive list of witnesses today, I dare say, starting with one individual, Mr. Paul Gillespie. He's a consultant and former member of the metro Toronto police department.
The Canadian Centre for Justice Statistics is represented by Lynn Barr-Telford, director, and Karen Mihorean, assistant director.
From the Canadian Bar Association, we have Ms. Tamra Thomson, director of the legislation and law reform section; Mr. Kevin Kindred, branch section chair; and Margaret Gallagher, treasurer of the national criminal justice section.
We also have Ms. Judy Nuttall, coordinator of the White Ribbon Against Pornography; Mr. Steve Sullivan, of the Canadian Resource Centre for Victims of Crime; and Martha Mackinnon and Emily Chan, of Justice for Children and Youth.
We'll begin as the witnesses appear on the agenda.
Mr. Gillespie, you have the floor.
Thank you very much, Mr. Chair.
My name is Paul Gillespie. I was previously employed by the Toronto Police Service, where I was lucky enough to serve for 28 years. For the last six years of my duties, I was the officer in charge of the child exploitation section of the sex crimes unit, and I was very fortunate to be working with a tremendous group of individuals. The team did some great work in pioneering some of the efforts that are being used around the world today in regard to the online sexual exploitation of children.
Since I left the police service last June, I have been working with a not-for-profit group in Toronto that I helped to start, called the Kids' Internet Safety Alliance, or kinsa.net. Our mission statement is simple. We're simply dedicated to the elimination of the sexual exploitation of children on the Internet and in all related issues.
In my time as a law enforcement officer, and certainly in the child exploitation section of the sex crimes unit, we had a very talented group of young officers who were very sophisticated with technology. This allowed us to conduct intelligence investigations in very deep, dark areas of the Internet. Some of those areas are known as the “freenet” or the “undernet”. They are the bowels of the Internet and are basically impossible to trace. It is down there that we found the worst of the worst. Pedophiles would operate and conduct intelligence, refer members, pass on information, and teach each other. It was through these areas that the most vile of the pictures and movies that we are unfortunate enough to all now be aware of would enter the Internet.
We had officers specifically assigned to monitor chat rooms and news groups in this area, and to take the temperature of what was occurring around the world. On numerous occasions, members and pedophiles around the world would openly advocate coming to Canada and would explain to each other that one might be allowed to have sex with a 14-year-old child because it's legal. They did so often not to the dismay, but the wonderment and surprise of others around the world.
I have had the opportunity to conduct hundreds of presentations on safety issues, children's sexual issues, and sexual exploitation issues, to school groups, church groups, and public meetings, including one yesterday in Brantford. At some point in the meeting, I typically just ask everybody to raise their hand if they're aware it is legal for 50-year-old men to have sex with a 14-year-old child. To this day, most Canadians just don't understand it. When you lay out the facts, they're just most often horrified, understanding that if it happened to them, they would be mortified. They feel that the fact is, it can't be right. Luckily enough, and hopefully, if this legislation passes, I think it will be very good.
For the last four years, I've been working with Microsoft in relation to software that we developed, called the child exploitation tracking system. This takes me around the world as I work to have other countries accept this software, which will someday be a global network. In the last two years, I've been on six different continents and have spoken to officers in different areas. I'm keenly aware of what's occurring in those areas in regard to the computer-facilitated sexual exploitation of children, and this is first and foremost on everyone's minds.
The one common theme that I deal with, certainly from my peers in law enforcement and in government, is the fact that grown men truthfully should not be allowed to have sex with children. That's something I hope this legislation fixes.
Thank you for the opportunity to present to the committee, Mr. Chairman, data relevant to your consideration of . You have the presentation information with you.
We will present to you police-reported information on children and youths as victims of sexual offences as these offences are currently defined in the Criminal Code, and data on the processing by the courts of sexual offence cases.
Statistics Canada collects national data on the overall number of incidents of sexual offences in Canada that have been reported to police. Information on the characteristics of sexual offences reported to police—the age of the victim, the age of the accused, and the relationship of the victim to the accused—was available from a subset of 122 police services in 2005. While these subsets provide useful information on children and youths as victims of sexual offences, we must keep in mind that they are not nationally representative. Data limitations are noted on the various slide input notes.
First, let me begin by telling you what we know about the sexual activity of youth according to Statistics Canada's National Longitudinal Survey of Children and Youth, as of 2000-01, in which we asked youths if they had ever had consensual sex. We found that 5% of 12- and 13-years-olds, 13% of 14- and 15-year-olds, and 41% of 16- and 17-year-olds reported having had sexual intercourse. Among the sexually active 14- and 15-year-olds, 37% reported first having had sexual intercourse when they were 10 to 13 years old, and 36% when they were 14, with the remaining 27% at 15 years of age.
Before turning to what we know about sexual offences in Canada, it's important to recognize that given the secrecy that often surrounds sexual offences, they are the least likely offences to come to the attention of the police. According to the 2004 general social survey on victimization that covered the population 15 and over, only 8% of sexual offences are brought to the attention of the police. We suspect that reporting rates may even be lower for those younger than 15. At the end of the presentation, you'll find a supplementary slide on reasons for not reporting.
Turning to the second slide in the presentation, in 2005 there were about 26,000 sexual offences known to police. Among these, about 23,000 were sexual assaults, and just under 3,000 were other sexual offences, which included sexual interference, invitation to sexual touching, sexual exploitation, incest, anal intercourse, and bestiality. While we're unable to disaggregate the individual offences that make up the other sexual offences in our police-reported data, we do know from our court data that about three-quarters of cases of these other offences are sexual interference incidents.
Data from a subset of police services indicate that sexual offences are crimes largely committed against young women under the age of 18. Overall, in six in ten incidents of sexual violence, the victim is less than 18 years of age. As the slide clearly indicates, young women between the ages of 13 and 15 are the most vulnerable to being the victim of a sexual offence.
Concerning the age of the accused, for sexual assault and other sexual offences in which the victim is under 18, the accused is 21 years of age or older in about two-thirds of the incidents, and therefore outside the proposed age of exclusion. Young males aged 13 to 17 are at the highest risk of sexually offending. You'll also find a supplementary slide on age of accused at the end of the presentation.
While we cannot predict the direct impact of on the number and type of sexual offences reported to police, we are able to look at incidents of sexual assault in which the victim is 14 and 15. There were 788 such incidents in which an accused was identified, as reported by a subset of 122 police services in 2005. We found that in six in ten of these incidents, the accused was 21 years of age or older; in about one-quarter of the incidents, the accused was 16 to 20 years old.
Our subset of police reported data allows us to look at the relationship of the victim to the accused when an accused can be identified. The majority of sexual offences against children and youth are committed by someone known to them, more often by friends and acquaintances, about 50% of the time. Just over one-third are committed by family and just over 10% by strangers. We know that when kids are younger they are more likely to be sexually victimized by a family member. As they get older and more socially interactive, they are most likely to be sexually victimized by a friend or an acquaintance.
Turning to slide 4, we can turn our attention to trends, and we're able to look at 16 years of nationally representative data on other sexual offences. We see that there's been an overall decline of about one-quarter in the rate of these offences between 1990 and 2005. Despite this overall decline, however, in three of the four most recent years there have been slight increases. This overall decline is similar to trends in violent crime rates, where we've seen declines throughout the 1990s, followed by relative stability since 1999. You willl also find, in supplementary slides, information on trends in sexual assaults.
We can offer some insights into the offence of luring that the proposed bill touches on. These data are also from the subset of 122 police services in 2005, and although not nationally representative, they do provide a general sense of trends for these offences. Between 2003 and 2005 there were 116 reported incidents, of which 44 were reported in 2005.
We can also speak to the processing of sexual offence cases. There are three things that can happen to an incident when it's reported to the police: it can be cleared by charge, cleared otherwise, or remain unsolved. In 2005, next to robbery, the charge rate for “other” sexual offences was the lowest among violent offences, at 37%. What's noteworthy is the 44% decrease in charge rates for other sexual offences between 1990 and 2005. This is significantly larger than the 22% drop in charge rates for sexual assaults and the 4% drop in charge rates for violent crimes overall.
Remembering that only about 8% of sexual assaults are reported to police, and, as I've indicated, that other sexual offences are among the offences least likely to be cleared by charge, once cases do get to court, with the exception of homicide and attempted murder, sexual offences are the least likely to result in a conviction, compared to other violent offences. Overall, 49% of violent offences are convicted. This compares to just 39% of sexual assaults and 37% of other sexual offences.
Although conviction rates for sexual offences are low, once convicted they are dealt with harshly. Rates of incarceration are higher for these offences than they are for overall violent offences. For example, overall, the rate of incarceration for convicted cases of violent crimes is 35%. In the case of each sexual assault and “other” sexual offences the rate is 45%. It is higher for homicide, attempted murder, and robbery.
We also know from our court data that someone convicted of a sexual assault or an “other” sexual offence is more likely to get a longer prison sentence than cases of physical assault, including major assault; and “other” sexual offences, such as sexual interference, invitation to touching, and sexual exploitation, get longer prison sentences, on average, than cases of sexual assault. In 2003-04, on average, a person convicted of an “other” sexual offence and who was sentenced to prison had a sentence length of 529 days. This was up 117 days since 1994-95. This compares to an average prison sentence length of 212 days for violent crimes overall, and of 466 days in the case of sexual assault. Only homicides, attempted homicides, and robbery have longer average terms of imprisonment.
All sexual offences, be it either “other” sexual offences or sexual assault, are treated more harshly when the victim is 11 years and under than when the victim is 12 to 17 years old. For example, 47% of “other” sexual offence cases, where the victim was 11 or under, received a term of imprisonment. This was true for 39% of other sexual offences involving a victim of 12 to 17 years of age. Whether the accused is a family or non-family member also has an impact on whether the accused will receive a sentence of imprisonment. Upwards of 50% of cases where the accused is a family member get a term of imprisonment, compared to about 40% of cases where the accused is non-family.
In summary, Mr. Chairman, the data have shown that sexual offences are the least likely offence to be reported to the police. Young women aged 13 to 15 are the most vulnerable to sexual offences.
Roughly two-thirds of the accused are over the age of 21, where the victim was under the age of 18, and yet young males are at the highest risk of sexually offending.
Fewer incidents of sexual offences are being cleared by charge, and sexual offences have one of the lowest rates of conviction. However, when there are convictions, sexual offences are dealt with harshly by the courts, particularly when the victim is young and the accused is a family member.
Thank you, Mr. Chairman.
You'll find a series of supplementary points at the end of the presentation.
The CBA is pleased to have the opportunity to present today on an important equality issue in this area as well. It's an issue that the legal community has been aware of for more than a decade. It's raised now before this committee, because for the first time in some time, Parliament is again dealing with the issue of age of consent. I am speaking about the discriminatory provisions around anal intercourse in section 159 of the Criminal Code.
Since 1995 courts have told us that section 159 violates the charter, discriminating against gay men by stigmatizing their sexual conduct. One might ask why this is still an issue if courts have told us since 1995 that section 159 should be of no force and effect.
Courts have still had to deal with section 159 since 1995. We saw it come up again in 1998 in Quebec, in 2003 in British Columbia, in 2004 in Alberta, and in 2006 in Nova Scotia. All of those cases are cited at footnote four of our submission.
I would particularly note that for the 2006 case in Nova Scotia, a self-represented individual had to take the issue to the court of appeal in order to have his conviction under section 159 overturned.
This is actually still a live issue. But regardless of it being a live issue in the courts today, the fact that a discriminatory provision still exists in the Criminal Code sends a message in and of itself that is inappropriate and discriminatory.
We have also heard there are objections being raised to dealing with section 159 in the context of this bill.
Of course it's not for a witness to tell the committee about its own procedure. I will say there may be ways this committee can deal with the section 159 issue that are within the scope of the bill before you today. It may be that it instead requires the political will of the government and the minister to either amend the bill or to deal with section 159 in some separate manner.
The CBA firmly takes the position that full equality requires the repeal of section 159 and that the time is now.
Letters were sent to all provincial MPPs in Ontario, and in 2006 it was recorded in Hansard that by unanimous vote, the white ribbon from the White Ribbon Against Pornography campaign was to be worn for one day of that week. We also sent 8,000 letters from Barrie constituents to the judges of the Supreme Court, pleading for the age of consent to be raised, as the John Robin Sharpe case was debated.
Why are we doing this? In 1995 a judge ruled in Toronto that a man who had sexually abused a 14-year-old boy received minimal punishment. There was no concept of the agony of the victim. As well, 1999 brought the scourge of child pornography right to our door in Barrie, when Ivan Cohen was found guilty of possessing and producing child pornography. A jail sentence was ruled, but on being sent to the Ontario Court of Appeal, the sentence was commuted to house arrest, causing great anger locally. Then the case of John Robin Sharpe, with all its twists and turns, emerged before the public eye.
The Universal Declaration of Human Rights was and is being abused here in Canada. In exercising rights and freedoms, there must be accountability for the corrupt uses of personal rights that harm other people, especially children, and that abuse of all our rights. The rights of the individual have to be seen in the context of the ultimate good of the nation. The rights of the victim have to be considered against the rights of the offender. Without this, we lose our freedoms. We disintegrate into a justice system that has lost its way, that has lost sight of what real justice is.
The linchpin of the increase in child pornography centres on the age of consent. Canada has an age of consent to sex that is lower than in any other country in the world. Adults can legally engage in sexual activity with children 14 and older. The age of consent creates a large loophole in the law. Case: at 14, Canada's consent is lower than most western nations. There are no other western countries that have legalized sex as low as the age of 14. The National Post reports that a growing number of foreign men have used the Internet to lure Canadian children. And according to Concerned Citizens Against Child Pornography, reducing the age of consent is the key to the rise in Canada's pedophile crime, including Internet luring.
On asking my former MP about this, she replied that it was ancient law. So how many other ancient laws has Canada retained? The U.S.A., the U.K., and other countries have updated their medieval laws on marriage and sex. Why hasn't Canada?
The age of consent continues to be a legal loophole by which pedophiles are abusing our children. Action must be taken, and quickly, in order to protect and ensure the innocence of our children. Police Chief Fantino has said that even third world countries are more civilized and conscientious than ours is about our duty as adults to protect the most vulnerable component of our society, our children. According to Focus on the Family, a clear and present danger is facing our children. And Manitoba Premier Gary Doer has said that we believe the rights of children should be superior rights, in our country, to the rights of perverts.
In terms of development, a 14-year-old is not prepared for the responsibility of sex. Emotional, physiological, physical, mental, psychological, and spiritual maturity—all are factors over the next two to four years. A 14-year-old cannot understand or appreciate the danger of STDs, some of which are fatal, all of which play havoc with the lives of people who have been impacted by them.
Children abused in child pornography demonstrate multiple symptoms: emotional withdrawal, anti-social behaviour, mood swings, depression, fear, anxiety, a high risk of becoming perpetrators in later life, and destructive feelings of guilt and shame. Pornography desensitizes children.
Canada has cumbersome, outdated, time-consuming, ineffective, and expensive pornography investigation and laws. As the WRAP campaign flyer puts it, outdated disclosure rules force police to examine every computer file they seize before a charge is laid. Other western countries examine two or three files and then arrest the pedophile. The work of Project P and other similar groundbreaking endeavours are making clear progress in this very difficult and stressful protective work for Canada and Canadian children.
Finally, the “name and shame” move in England held a very apposite point, as this headline illustrates: “Named and Shamed: The MPs who won't back Sarah's Law”. This is with reference to the offenders' registry. It's similar to Christopher's law in Ontario and Megan's law in the U.S.A.
I call on the federal Parliament of Canada to bring in vital legislation necessary to raise the age of consent from 14 to 16 in order to protect the children of Canada, who are the future generation for this country.
It's a pleasure to be before the committee on this bill. It's one that, Mr. Chair, you and I have discussed in the past in your own attempts to pass similar legislation, which we supported. We supported as well the measures in Bill , which this committee dealt with a couple of years ago and which I think provided added protection for children up to the age of 18, with more discretion, obviously, than this bill.
I won't say very much. It's rare that we come to a committee when everyone seems to agree, at least on the principles of the bill. There's not a whole lot for us to say.
I think I'll echo what Mr. Gillespie said about the issue of the Internet and the discussions that go on within those chat rooms between people who would seek to exploit children.
About the lower age of consent, I was at a conference recently with investigators and crown prosecutors who deal with these kinds of situations, and this was a topic of discussion. One of the investigators gave us a demonstration. He went into a chat room, posing as a girl who was 13. We could tell the number of men who wanted to initiate a discussion with that officer by the pings. It was just ping, ping, ping—one ping after another. It was quite disturbing to see. This was one o'clock in the afternoon, and to see that many people out there, many of whom would, I think, seek to exploit that child—
The officer talked as well about how, when they initiate discussions, some of these individuals will try to keep the discussion going with that child until they reach the age of 14. That was a concern as well. I think this bill will add a tool to the repertoire of law enforcement and will better protect children. It's important to keep the focus on the motivations of the adult and not on the consent of the young person. This is focusing on individuals who seek to exploit children for their own purposes.
I'll just briefly mention one other issue. We've recently testified before some your colleagues on the access to information committee, which is reviewing PIPEDA, the privacy legislation. We're trying to get the debate about privacy—in that case the privacy of Internet subscribers—expanded to include the need to protect the privacy of these children, whose images are being traded on the Internet like baseball cards. We have to begin to deal with the realization that we have young people who have access to Webcams, who are being manipulated by older individuals to share their photos. We need to begin to protect those privacy rights as well.
Thank you, Mr. Chairman.
I will. Thank you, Mr. Chair.
I would also like to express our gratitude for the opportunity to be here. Justice for Children and Youth is a legal clinic that addresses all of the legal regimes that affect children. In fact, we're Canada's only clinic with the breadth of the types of laws that affect children and youth that we deal with.
In addition, Justice for Children and Youth is a strong supporter of Canada's implementation of the UN Convention on the Rights of the Child, and for that reason we're particularly happy to be here, because the convention recognizes the balance both of the intrinsic individual rights of the child and of their need for special protections. So I thank you very much for the opportunity.
We have read Bill with those principles, this balancing in mind. I will apologize. We have prepared a written submission; however, I was unable to complete it in time for translation, so I have provided it to the clerk and I hope you will have the opportunity to look at it when it's in a suitable form for you all.
We have a few recommendations or positions relating to Bill . The first position, which I believe everyone in this room shares, is that no one wants young people to be sexually exploited. We are also supporters of the amendments referred to by Mr. Sullivan in 2005 that set out criteria and broadened our understanding of what sexual exploitation might look like. And in fact those amendments specifically identified age and age difference as two of the possible criteria to be considered. We supported those amendments and are delighted they have been enacted.
Bill doesn't change our understanding of sexual exploitation. It does, however, broaden the protection against predatory luring for 14- and 15-year-olds. We support that as well.
I'm not going to go into our lengthy submissions on this point, but we agree with the Canadian Bar Association that this legislation is the opportunity—and there is a moral and I think a legal mandate—to repeal section 159 of the Criminal Code. That provision is, in our opinion, discriminatory. In fact, Justice for Children and Youth intervened at the Ontario Court of Appeal in the case that changed the law in Ontario, the case that has been referred to by the Canadian Bar Association. So I won't go on and make further submissions. As I said, they're in our written comment about that. I'll simply agree with the Canadian Bar Association.
I will, however, point out one piece of language, and that is that the government's backgrounder with respect to Bill suggests that the age of 18 is the age at which exploitative sexual relationships are legal. So I would point out that it's therefore not appropriate to be indicating that section 159 of the Criminal Code by its very nature is addressing exploitative conduct.
The next point I'm grateful to have the opportunity to make is slightly more complex. That relates to the close-in-age exemption. The close-in-age exemption, in my view, is a proxy for power imbalance. We assume—and I think mostly we're right—that people who are significantly older have more power, more ability to manipulate. It's a proxy for what we think is wrong.
We don't have rules about it if you're over 18. We've all seen relationships in which age isn't the determining factor for what creates a power imbalance, so it's problematic. As then Minister Toews suggested, sexually active 14- and 15-year-olds mostly are having their relationships with peers or cohorts, but not all—it's “mostly”. In addition, again as then Minister of Justice Toews suggested, the intent of this legislation is not to criminalize teenage conduct, and yet the relationship of a 14-year-old and a 19-year-old, even if their birthdays are the same day, would in fact be criminalized.
The law likes ages because they're certain, they're easier to apply, and there is an attractiveness to them, yet they might not in fact reflect a relationship that is exploitative or has a power imbalance or is manipulative. Therefore, we have a suggestion that I think would allow our courts to look at the nature of the actual relationship in perhaps a more effective way. It is our submission that the sexual exploitation provisions be amended to say that an age gap of five years or more is presumptively exploitative. It's not just a factor to be considered; one can presume legally that it is exploitative.
Legally, presumptions are rebuttable; hence, if you had a relationship in which — We can all picture somebody who is as sophisticated, as in control, as mature, as someone who's five years older than they, and that would allow for that sort of relationship not to be criminalized.
Our last suggestion with respect to this bill relates to the past as well. Canada's laws with respect to sexual activity are complex. They're hard to follow. At one point in my career, when I was counsel to a school board, I actually drew a chart trying to show what was legal and what was not, because young people have difficulty understanding it. It won't be any easier if is passed unamended. It's our submission that there needs to be a targeted public education campaign.
I think there are two targets. One is a general public education campaign for everyone, which may have a deterrent effect, but in any case will make it clear what the rules are, because they're somewhat complicated.
The second thing is that young people need to be addressed in a targeted public education campaign. They don't necessarily understand the rules that apply to them. One of the concerns—and I know others have expressed this to you—is that if you think it's illegal, you won't seek the help you need. You won't report to the police; you won't seek health information; you won't seek birth control information. You'll go underground. No one wants that, and it ought not to be the effect of , but it may well be, because it's going to be hard to understand.
In our submission, a campaign that fleshes out what exploitation looks like and what luring looks like and that helps young people to actually understand the rules that are going to apply to them and their relationships might have the effect—and I hope it would—of allowing young people themselves, through their own voices, to say, “Hey, you can't do that to me.”
I would echo what Paul said.
The justice system is not a pretty place for victims of crime, especially young victims who have been abused or sexually exploited. I think it's one of the reasons the reporting rates are so low, and it's one of the reasons the numbers get even lower as it proceeds. It's a difficult thing.
For us, the issue is whether or not adults should be having sex with children 14 and 15 years old or younger. I think most Canadians would say no to that.
It's tough. When you get into the close-in-age exemption, we all agree there should be an age when young people can experiment with their peers. Personal relationships are difficult. They're not defined in black and white, as the law often demands, but I think at some point we have to make the cut-off.
Although I haven't considered the presumptive issue, one of the concerns I would raise is on putting young people into the courtroom to possibly testify on these things, to answer questions on whether or not they were exploited, and those kinds of things. I think if we simply cut off the age at five years, in many cases we would spare young people from going through that process.
There are going to be cases, as Mr. Lee has mentioned. Whatever the laws are, there are going to be cases where there is a grey area.
And I certainly don't need to identify my own experience either.
I believe that the age at which young people first engage in sexual activity is fairly culturally based. Young people often do what their peers do. They often—
Well, here's an example that doesn't even occur in Canada. In refugee camps, you will find young people engaging in sexual activity and becoming pregnant at extremely young ages, in part to reproduce their tribe. There is something highly survivalist about reaching out and recreating those people who have been victims of genocide or other atrocities. That's the safest example, because we can all understand that one. We might not think it's the very best way for 11-, 12-, and 13-year-olds to be behaving.
The other thing is that young people, through nutrition and a variety of other things, are in fact reaching puberty sooner than they did many years ago. So there are a variety of reasons, some individual, some cultural, some physically developmental.
But the age at which young Canadians on average first begin to be sexually active is about 14. That, of course, corresponds to what, as of today, is the age of consent. It's in our brief. I can't remember, but it's 14.1 years for one gender—presumably that's girls—and something like 14.5 years for the other gender.
Thank you to all witnesses who have appeared before us this morning.
My first question is for Mr. Gillespie, but it is in a slightly different vein. The bill seems to be supported by all parties. When you have children, in our society, oftentimes you drop your kids off in the morning to catch their school buses, and do so until they are in grade 6. Then, they go to high school, and in my province, the CEGEP. Often, parents lose touch with their kids. Parents and their children come home at different hours and in the end the relationship is a difficult one.
At some point, the young woman or the young man turns 14 and experiences an adrenaline rush. It happens among all adolescents, and parents have no power over it. They may see that things are not going well, they feel responsible, guilty and do everything in their power to solve the problems.
Mr. Gillespie, I don't want to discuss the question of new technologies. According to you, would this bill help parents as was stated earlier on? The age of consent is being raised to 16. Could this bill, in some cases, help parents who are no longer able to fulfil their roles because of these very modern lifestyles and the furious pace of things? Forget about the word "luring". I don't want to discuss computers. I simply want you to tell us whether, based on your experience, this bill could help.
Thank you very much, Mr. Chair.
It's an honour to be here again. I promise I'm going home today. Actually, Isabel Schurman, who has done quite a bit of work on this, was going to be here today. I'm filling in for Isabel, although not very well.
When we first looked at this bill quite some time ago on behalf of CCCDL, our original position was that the age really didn't need to change. It didn't really need to be increased for protection, because the Criminal Code is really protective of those predator-type situations up to and including the age of 18. However, I'm not going to waste the committee's time, because quite frankly, others have decided that this bill has merit to raise the age. So my comments are going to be more generally based today.
When you make these changes, I think it's very important for you to take into consideration, if you can, the fact that we're talking about young people who are much more sophisticated, at least optically, much more mature, at least optically, much more involved in the world around them—by the media and the Internet, etc.—and much more aware of their rights than we ever were in my generation, a hundred years ago.
When we're dealing with this, we have to be aware that we have to respect young people's ability to make decisions. We want to protect them, but we have to respect their ability to make decisions for themselves. Make sure this bill doesn't oppress in a way that these young people go underground in relation to wanting to continue relations, revolt against their parents, and not get the help they need from the health services that are available, so that AIDS epidemics, etc., blossom as a result of this. When you're considering this, it's really important to look at the collateral aspects that may occur.
We are in favour of the section in relation to luring. I don't think there's any question. We have no comments to make in relation to that.
If the bill gets passed, the anal intercourse section is out there on its own. If there's a way in which you could bring it in so that it can take advantage of the other provisions—I think it's section 150.1 or something like that—you can have the five-year principle apply. Some may say it should go completely, but if that's not the case, it should be under the umbrella of the spirit of the rest of the sections. If you can bring it in, I think that would be very important.
There are constitutional issues that may arise, and some others have talked about them in relation to the provinces in terms of licensing marriage, and the federal government. Someone talked to me about the scenario of, for instance, a judge in the province allowing a marriage and the feds then coming in and charging that person because the relationship is beyond the five-year period. I think there would be a challenge to that, and the challenge I could see is somebody representing the individual—let's just say it's a young woman and a man—in regard to the young woman's rights. So we have to recognize that they have to be protected. These young people have to be seen to have a voice and this has to protect them, but in a way that doesn't take away a respect for their individual decisions.
The same thing applies, I take it, in terms of what we would have to worry about if it was necessary for a doctor to report a relationship that the doctor felt was abusive. We don't want that young person to not seek out the doctor, right? So there has to be a balance that we figure out here.
So our comment is that the bill in itself, in its spirit, is a good bill. Having decided that it is going to pass, we would ask that your attention be addressed to the more general concerns, so that we make sure these people who are going to be affected understand that the government respects their right to make decisions, but wants to protect them from criminal activity.
Our laws have gone a long way in terms of protecting people in those predatory situations. We're talking about consent here. Sexual assault, those kinds of offences, formerly rape, are still going to be prosecuted. We're talking about consent, and in that regard, we have to make sure that the result of the legislation doesn't create social problems.
The last thing I will say is that I heard one of the previous speakers this morning, as I was listening in, talk about a presumption of the five years, a presumptive abuse of relationship—that's the wrong word, but I think you know what I mean. To me, that makes a lot of sense and it might be something you might consider. What it would do is it would instill the message that this is a presumptive relationship that is against the law, but it would give the parties, the individual, a recognition that they can satisfy the court that it's not as it appears, that they are mature, that it is not something a judge needs to worry about.
Those are my general comments.
My name is Jason Gratl. I'm the volunteer president of the British Columbia Civil Liberties Association. My colleague is Christina Godlewska. She's the articled student at the B.C. Civil Liberties Association.
We'd like to begin by thanking the members of the committee for the opportunity to make representations, however futile it might seem at this point politically. Still, we value the opportunity to put forward some of our concerns and considerations with regard to Bill .
I'll begin with a general comment expressing our concern that Bill represents a fundamental shift of policy and attitude toward sexuality. In 1992, the Supreme Court of Canada, in the Butler decision dealing with the definition of obscenity, signalled a fundamental shift from the legislation of morality to the legislation of harm. From that point forward, the legislature and the courts were to look for specific types of harm, not necessarily scientifically measurable types of harm, but analytically discoverable harm, such as attitudinal harm—changes in people's attitudes toward each other that are fundamentally anti-social, psychological harm to individuals.
The idea was to rationally connect appreciable types of harm to the type of legislative endeavour underway. To our mind, that commitment to legislating against harm rather than legislating morality is endangered or imperilled by the approach this committee currently seems to be taking.
The existing protections for young people are adequate, in our submission. The sexual predators who exist in the world need to be taken account of, and much has already been done to ensure that those sexual predators are controlled, punished, deterred, and so forth, by the existing criminal law. The committee is well familiar with the crime of exploitation, as well as the restraints placed on persons in positions of trust, power, and authority to refrain from sexual contact with minors. Those go a long way to ensuring that young people are protected.
What we haven't heard before this committee, to my knowledge, is evidence that there is a rampant social problem in relation to a differential age. It's not as though there are a lot of relationships that involve older people and minors. Our concern is that in the absence of some evidence of harm, the rush on the part of the current government to enact Bill is an unconsidered response to a moral objection, rather than a legislative response to harms that have been shown to exist.
On the change in age and the five-year close-in-age exemption, empirically speaking there's a world of difference between a 12- or 13-year-old child and a 14- or 15-year-old child. Fourteen- and fifteen-year-old children are much more easily mistaken for adults, especially in a festive context—house parties, clubs, and so forth—where there is some concern that people whose proximity in age is greater than five years might mingle. In our view, even if the age is raised to 16, some of those concerns could be answered by a due-diligence defence. That is to say, if an accused person took reasonable steps to uncover the age of the person with whom they intended to have sexual contact, if there's any doubt, that ought to be an adequate defence in law to this offence.
We are talking about drastic consequences to individuals who are convicted of sexual offences—not only potential penal consequences, but inclusion on sexual offender databases and registries. These are consequences that ultimately change a person's life from there on in, making that person subject to extra monitoring, extra prescription, and so forth.
The notion that a person should suffer these consequences, despite having taken steps to discover the age of the person with whom he or she intends to have sexual contact, is to our minds abhorrent and totally inappropriate. We urge the committee to consider adding a due diligence defence to those provisions.
The submission is to the same effect as the notion of a presumptively abusive relationship, which we would support. Sexual contact with a person younger than 16 ought to raise a presumption that a relationship is abusive, but the presumption could be set aside with appropriate evidence.
We're also concerned that the change in age for sexual consent could undermine the access children might have to information about reproductive health, contraception, and how to keep themselves safe when engaging in sexual contact.
We've seen an unfortunate decline in the United States on the commitment to provide information to young people. Especially if there's going to be a shift to legislating morality, we wouldn't want to see that shift take place in the area of reproductive health education as well.
Finally, we support the deletion of any difference in age for anal intercourse and sexual contact other than anal intercourse. We regard that on its face as discriminatory and contrary to the charter.
Those are our submissions.
Thank you for inviting us to appear. I bring regrets from members of my board of directors who were unable to appear with me.
I come representing 25 member societies that work with victimized and criminalized women and girls across the country. My comments will be brief, but I look forward to some of the discussion.
I would suspect that most of us everywhere would prefer that young people and children refrain from sexual activity until the time they are of sufficient age and maturity to engage in caring and consensual relationships. That being said, none of us want to see young people exploited, and none of us want to see young people further victimized. But we think the current Criminal Code health and child welfare provisions adequately cover many of these areas.
From our perspective, the gap tends to be in the bigger issue of the sometime lack of political or administrative will to ensure the existing laws and protections are implemented and the protections in fact exist in the way they're intended. There is also sometimes a reluctance to pursue those who violate those provisions.
We also have concerns about who might be pursued in this context. Let's say you have a young woman who engages in a sexual relationship with an older man and is observed by a doctor. We see situations where the young woman might refuse to provide information. We'd be loath to see those young women end up being cited for things like contempt or other potential charges. Those realities exist now, I would suggest, because of the lack of will to ensure that the current provisions are implemented in a gender-specific and fair way.
We also want to protect children in terms of a variety of other areas, but we don't see, for instance, the same interest in other potential areas where young people are being exploited, whether or not it's child pornography. We know there's an interest in that area, but pornographic advertising techniques aren't challenged in similar ways.
If we're interested in not promoting the sexualization of young people, I think there are many other areas we need to look at, including broader based education campaigns and ways to limit the use of young people who are increasingly being sexualized at very young ages.
We also do not support a differential age in terms of anal intercourse. If you decide to in fact proceed with this bill, in the alternative, we're interested in having some discussions about the issue of rebuttable presumption.
That's our submission. Thank you.
After reading the news reports and minutes from previous witnesses at this hearing, it is frustrating to hear the type of evidence being presented to bolster the case for Bill .
One newspaper reports that a witness used the sexual abuse of a two-year-old as justification for this bill, as if the law was somehow unclear on this and needed to be strengthened. The supporters of this bill claim that the age of consent must be increased in order to combat child prostitution and child pornography.
The reality is that both of these activities are already illegal, not just for 14- and 15-year-olds but for anyone under the age of 18. The laws are absolutely clear: sexual abuse and exploitation are illegal. If these laws aren't being enforced properly, the solution is not to make them more illegal. Redundant criminalization will not suddenly create an environment where young people are empowered to recognize exploitation and come forward about abuse. More work needs to be done to educate and empower youth, and Bill will be counterproductive to these aims, for reasons that will be outlined later.
Another claim is that Canada is a haven for pedophiles who want to take advantage of our supposedly low age of consent. In reality, when taking into account the 2005 law that expanded the definition of exploitation, which I believe was Bill C-2 before being passed into law, the Department of Justice says that “Canada's criminal law framework of protection against the sexual exploitation and abuse of children and youth is amongst the most comprehensive anywhere.”
Our second point is that increasing the age of consent will actually put young people in more danger by inhibiting their access to sexual health information and services. In the United Kingdom, where the age of consent is currently 16, a survey of young women found that those under the age of consent were six times more likely to say that “fear of being too young” prevented them from seeking help.
In fact, the Department of Justice itself stated just two years ago that the age of consent should not be increased to 16 because “educating youth to make informed choices that are right for them is better addressed through parental guidance and sexual health education than by using the Criminal Code to criminalize youth for engaging in such activity”.
Our third point is that an increase to the age of consent would result in social workers and teachers being reluctant to provide adequate sexual health education and information to young people.
The Ontario Court of Appeal noted in a 1995 ruling how age of consent laws, which purport to protect young people, can actually have the opposite effect by preventing them from accessing information. I'll quote from the ruling:
||The health education they should be receiving to protect them from avoidable harm may be curtailed, since it may be interpreted as counselling young people about a form of sexual conduct the law prohibits them from participating in. Hence, the Criminal Code provision ostensibly crafted to prevent adolescents from harm may itself, by inhibiting education about health risks associated with that behaviour, contribute to the harm it seeks to reduce.
Through federal and provincial laws and professional codes of regulatory bodies, mandatory reporting of suspected child abuse is widespread across Canada. In Ontario the Child and Family Services Act mandates reporting if the young person is under the age of 16. This applies to teachers, social workers, youth workers, doctors, nurses, and many others.
By criminalizing consensual sexual activity involving 14- and 15-year-olds, previously legal activity will now be considered abuse and the prospect of mandatory disclosure may prevent professionals from assisting young people. As a former peer counsellor for youth myself, I was trained to warn young people about the possibility of incriminating themselves or their partners before they spoke about their sexual activities. Increasing the age of consent would mean that more young people would have to be warned about disclosure and more of them would be reluctant to speak with professionals.
Our final point is that lesbian, gay, bisexual, trans-identified, and queer youth will be disproportionately affected by this bill compared to their heterosexual counterparts. The choices of queer youth already face additional scrutiny when it comes to their sexual identity and activity.
In the Marc Hall case, when a 17-year-old high school student was denied a request to bring his 21-year-old male date to his prom, the school board chair justified this homophobic discrimination by claiming that Marc's partner was too old to bring anyway. In reality, many heterosexual students bring dates of similarly disparate ages to their school proms and rarely are these decisions ever questioned.
When youth are queer it is often assumed their choices are uninformed, just a phase, or that they are being recruited and exploited. In addition, given the widespread homophobia that exists among teachers, parents, and society in general, we have very good reason to believe that will be disproportionately used to regulate the sexual lives of queer youth.
It is not uncommon for queer youth to seek out relationships with older partners, as they can provide much-needed recognition and support in a context where many of their peers are still closeted due to prevailing homophobia in schools and families. Such age-discrepant relationships are not always exploitative or harmful. In fact, they can be beneficial, and this recognition is an important one in the lives of queer youth. This proposed law would further isolate them and expose them to danger.
Gay and bisexual male youth are already explicitly targeted in current age-of-consent legislation through section 159 of the Criminal Code, which sets a discriminatory age of consent for anal intercourse. It is important to note that when this section was struck down by the Ontario Court of Appeal in May 1995 the majority opinion held that the discrimination was unconstitutional, not based on sexual orientation but on age. This sets a precedent that leads us to believe that can be struck down as a violation of section 15 of the Charter of Rights and Freedoms on the basis that it discriminates against young people without demonstrable justification.
Mr. Chairman, members of Parliament, on behalf of the Institute of Marriage and Family Canada, I would like to thank you for the opportunity to present to you our considerations in support of , an act to amend the Criminal Code on age of sexual consent
The Institute of Marriage and Family Canada is a research think tank based here in Ottawa. We are committed to bringing together the latest research on issues that face Canadian families and placing it in the hands of decision-makers such as you.
I offer my apologies for not having this presentation available in both official languages. Unfortunately, I received notice only on Tuesday that we would be appearing, and time restraints have necessitated that it be available only in English today. The clerk has copies, and they will distributed in the days ahead.
Bill is a bill that we are pleased to see being debated and poised for final voting in the House of Commons in the weeks ahead. As you know even better than I do, the premise of this bill has been under consideration for many years and advocated by family-friendly organizations for even longer.
In considering the text of this bill, it is clear to me that this bill will give law enforcement agencies and the courts the necessary tools to actively combat the sexual predators, those who would harm our youth. From my reading of the bill, this is not a sex bill, and rather is a child protection bill, strengthening protection of youth from adult sexual predators. It is clear from the legislation that the non-exploitive youth-to-youth sexual relationships are not under the microscope, but rather it is intended to give all levels of law enforcement the teeth to fight sexual exploitation.
Canadians have clearly stated that this change is wanted and widely supported. In May 2002 we commissioned a poll with Pollara, which, as you will know, is an international polling company. Through the survey, a total of 1,659 interviews were conducted with Canadians 18 years of age and older, in every region of Canada, and with roughly equal numbers of men and women. Through the survey three questions were asked on child pornography and, more importantly, the age of sexual consent.
The first question asked was the following:
||Recently, the B.C. Supreme Court acquitted John Robin Sharpe of possessing and distributing child pornography on the grounds that his fictional stories depicting scenes of violence and sex involving adults with children have some artistic merit and could not be classified as child pornography.
Of the respondents, 86% either disagreed or strongly disagreed with this ruling.
The second question was the following:
||Do you think strengthening child pornography legislation should be a high priority, a moderate priority, a low priority or not a priority at all for the federal government?
An astounding 91% of respondents stated that it was either a high or a moderate priority, and 76% of those said that it was a high priority.
The third question is most germane to our debate today:
||There has been some debate lately about the age of sexual consent in Canada. Currently the age of sexual consent for most sexual activities is 14 years of age. Do you think that the federal government should raise the current age of sexual consent from 14 to 16 years of age?
An overwhelming 80% of respondents felt that it should be 16 years or higher.
This poll will be included with my information and dispersed by the clerk as well.
As you can see from these dramatic results, is clearly in line with the results of our Pollara survey. Based on the media work—such as radio and television talk shows--that I have done over the past year, it is my belief that these results remain accurate today as well.
There have been arguments that there is no need to change the law in this matter and that it will unnecessarily penalize sexually active teens. I fail to see the logic of this argument. First of all, the bill allows for most inter-teen sexual activity, within a set age range.
Second, it is clear from reading this bill that it is not written to promote sex or sexual abstinence. Rather, it is intended to protect our youth from sexual predators.
Third, and of particular importance, according to Dr. Eleanor Maticka-Tyndale of the University of Windsor in her paper, “Sexual Health and Canadian Youth: How Do We Measure Up?”, taken from The Canadian Journal of Human Sexuality, Spring/Summer 2001:
||Half of young people do not initiate sexual intercourse until after their 17th birthday—approximately 3/4 do not initiate until their 16th birthday or later.
Clearly, moving the age of sexual consent to a minimum of 16 years of age is in keeping with this peer-reviewed study.
Information from the Henry J. Kaiser Family Foundation of California mirrors Dr. Maticka-Tyndale's research. In their October 2003 report, “Virginity and the First Time,” their researchers found that
||Most adolescents surveyed agree that sexual activity is most appropriate among people aged 18 and older, or those who are married or in committed relationships.
In June 2006 I took part in a talk radio show on the New 940 out of Montreal. The topic was raising the age of sexual consent. Prior to my segment, three teenaged girls were discussing this issue with the host. I found it interesting that they were unanimous in their support of raising the age of consent to 16. All three had been sexually active for several years, and all three felt that the biggest issue for them, in retrospect, was that they were not emotionally mature enough to deal with all that sexual activity brought with it.
Former justice minister Anne McLellan was quoted in the February 5, 2001 National Post as saying:
||And people quite rightly believe kids are different—we all do. Young people simply lack, in many cases, the capacity to think and reason and understand the consequences and implications of their acts in the same way that adults do.
Mr. Chair, simply put, it's doubtful that the majority of teens under 16 fully understand and are fully prepared emotionally for sex. In light of this, society has an obligation to protect our children and youth from predators and from those who would take advantage of their youth and emotional immaturity. In the vast majority of cases, youth of 14 years of age are most often in a position of trust and dependency when dealing with older teens and adults.
So we turn to the implications of this bill and those who are targets. I'd like to bring some additional research to your attention as well. According to research on the website for Enough is Enough, approximately 89% of sexual solicitations are made either in chat rooms or through instant messaging, and one in five youth, ages 10 to 17 years, has been sexually solicited online. This was done by the Journal of the American Medical Association, 2001.
It is estimated that over 25% of youth participate in real-time chat, and even more use instant messaging. Internet exploitation is a very real problem today.
Furthermore, the American Medical Association reported in 2001 that “Solicited youth reported high levels of distress after solicitation incidents. Risk of distress was more common among the younger youth, those who received aggressive solicitations”—in other words, the solicitor attempted or made off-line contact—“and those who were solicited on a computer away from their home.”
A research project based in the United States examined 129 cases where predators targeted youth under 18 through the Internet. The study found that an overwhelming 76% of victims were between 13 and 15 years of age. Furthermore, female victims accounted for 75% of the targeted youth. Sadly, over half the victims described themselves as in love or as having strong feelings for their abuser. The study found that most of the predators were upfront with their young victims about being older adults looking for sex with teens. Predators are not hiding in the shadows but are openly manipulating young teens into consensual sex.
I note that in the federal budget that was just passed, the finance minister included a government investment of $6 million per year to “combat sexual exploitation and trafficking”. Our children are our greatest resource, and this measure reflects a sad reality within our society. For many of us, Bill will go a long way to assist this plan. According to Statistics Canada, the proliferation of sexual exploitation is highest among girls 11 through 19, peaking at 13 years of age, and among boys three to 14 years old.
Statistics Canada states that:
||Assault rates against children and youth generally increased between 1999 and 2002, but have subsequently fallen in 2003 for each age group.
I don't have statistics beyond 2003, although I do note that those assault rates are still double what they were 20 years ago.
Mr. Chair, in conclusion, let me first thank all committee members for the opportunity to make this presentation to you. The Institute of Marriage and Family supports the premise of Bill , an act to amend the Criminal Code on the age of sexual consent. As legislators, you can do nothing better than protecting our youth and giving the legal system the tools to fight against the sexual exploitation of them.
I look forward to your questions and the discussion on this important issue.
Thank you for the opportunity to speak to the committee.
I'm on faculty at the law school at the University of Ottawa, where I teach, research, and write in both constitutional and criminal law.
I'm going to take a slightly different approach to my submissions from some of the others today. I'd like to raise two matters with the committee. The first is a constitutional issue that I see in the amendment, and the second are some criminal law policy questions that provokes.
To begin with the constitutional law question, I can offer the committee a very brief overview of how this amendment comes into conflict with provincial powers over the solemnization of marriage. It may be that this conflict is ultimately remedied by the judicial doctrine of paramountcy, but I think the committee should be aware of the issues raised by a change to the age of consent to sexual activity. It's fairly settled law, I think, that it is within provincial constitutional competence over solemnization of marriage to set the minimum age for marriage. There are varying regimes in the different provinces and territories, but there are two problems that this amendment immediately creates. First, in the Yukon, Northwest Territories, and Nunavut the minimum age for marriage is currently set at 15, with parental consent. This raises an obvious conflict with the federal Criminal Code provision that forbids sexual activity under the age of 16 if there's more than a five-year gap.
The second problem that immediately arises is in provinces where the minimum age for marriage is 16 but where there are processes for obtaining permission at a younger age, either through the courts or through the officiating minister. Although I have some questions and concerns about the criminal law policy implications of the amendment, which I will raise in a moment, it is likely within the federal government's criminal law power to make this change.
Given, then, that both schemes are constitutionally permissible—provincial age limits under solemnization of marriage competence and federal criminal law age limits for lawful sexual activity—the legal question becomes how to resolve the constitutional conflict.
The judicial doctrine of paramountcy is the usual route for constitutional conflicts, and it provides that in cases of conflict between federal and provincial laws, the federal laws are paramount and the provincial law is inoperative to the extent of the conflict. The Supreme Court of Canada has tended to prefer a very narrow approach to paramountcy, leaving a great deal of room for the concurrent operation of federal and provincial laws, except on the point of express or direct conflict. Where there is, as the court describes, an impossibility of dual compliance, the federal law prevails.
It may be, as famously declared, that governments should stay out of the bedrooms of the nation, and it may be that lawmakers can envision a platonic marriage, but it seems evident that constitutionally speaking, it's impossible to reconcile a lawful marriage between a 15-year-old and a 21-year-old and a Criminal Code provision that makes sexual activity between those partners unlawful. From a constitutional point of view, therefore, the provinces are faced with having to raise minimum age limits to 16 if there's an age gap of more than five years between the parties.
I've read and heard the policy justifications for the proposed amendment, and if it's to be enacted, I certainly support the close-in-age exemption. I think it raises constitutional and social problems in the marriage context. The reasons for permitting teenage marriage are myriad: cultural, religious, and social. The reasons for preferring provincial competence over the solemnization of marriage must at least in part be a response to the more localized or community norms on marriage across the country. I worry that you are in particular creating problems in our three territories, the jurisdictions with presumably justifiable expressed age limits of 15 for marriage, with parental consent.
There are always bright lines to be drawn when age limits are involved, and generalized judgments about maturity and readiness. However, I think that when it comes to marriage involving parental consent or judicial order or minister approval, as the case may be, the Criminal Code prohibition on sexual activity between, for example, a 15-year-old and 21-year-old could be an absolute bar that is problematic and regrettable in those rare instances when all parties believe a marriage is within the best interests of the younger party. In short, on this point, I think the committee needs to consider specifically in the marriage context the defencibility around laws permitting a 15-year-old and a 20-year-old to marry and those that would forbid it if the older partner is 21.
This brings me to my final point on the constitutional question, and that is whether, given the constitutional conflict, a defencible exception could be crafted for sexual activity within marriage. I have two brief but very strong arguments against a marriage exception. First, it is my view that privileging otherwise unlawful sexual activity within marriage is no longer legally permitted, given our expanded legal and social recognition of common-law relationships, but more importantly, given that under no circumstances would we permit sexual violence in a marriage context. If sexual activity is deemed unlawful because a party is legally incapable of giving consent, this is an offence akin to sexual violence offences, and I would not think it constitutionally permissible to create marriage exceptions in this area.
Second, I think it's extremely problematic to create marriage exceptions to otherwise unlawful sexual activity where the marriage requires parental, court-ordered, or a minister's permission. This places the regulation of teenage marital sexuality directly in the hands of others and places parents, courts, and ministers in the untenable situation of offering consent for a child to engage in otherwise illegal sexual activity.
To conclude on the constitutional issue, it's my view that the committee needs to consider the constitutional question that arises by virtue of the amendment and take positive steps to ascertain whether it's appropriate for the provinces to either reconsider age limits to marriage or deal with potentially inoperative age limits in certain circumstances.
This brings me to my second concern with the legislation, and that's the broader criminal law policy questions at play. The amendment deals with social concerns around teenage sexual relations by creating a new category of criminals. While the goal of targeting sexual predators is one that no one would disagree with, I am unconvinced that from a criminal law policy perspective this amendment is the best way or even a good way to get at sexually predatory behaviour.
Given the social norms around sexual relationships, and what we can take judicial and political notice of, even without all the statistics and support, it's evident that this law primarily targets male sexual predators. In most sexual relationships, and certainly in most where a teenager is involved, the older partner, the unlawful partner, will be a man. This then becomes a Criminal Code amendment that primarily involves regulating the sexual lives of teenage girls, and while framed as gender neutral, there are obvious gender implications.
We already have many under-enforced provisions in the Criminal Code around sexual violence, sexual exploitation, and incest, as well as laws around pornography and prostitution. These laws could combine to offer powerful protection to teenage girls against sexual predators without infringing on their sexual autonomy or sexual health and with a far stronger social message around the kinds of behaviours we condemn.
We should strongly enforce laws around sexual violence. We should make sure we require a legal culture that sends a message to young people that they control their sexual autonomy, that they, and especially teenage girls, have the right to say no to sexual activity. We should condemn the patriarchy that encourages predatory behaviour or encourages men to believe they have to relate primarily in a sexual way to women. I think this is best done through the laws around sexual violence or abuses of trust, authority, and power. Creating a new category of criminals does nothing to change the culture and only drives teenage sexual activity further underground.
Thank you for the opportunity to speak to you, and I welcome any questions you have about either issue.
We thank you all for your testimony. We listened attentively.
I think, with fairness, we have to realize that we're in a context here where in the world, age limits are set; we're in a spectrum. Every community is different. In some places in the United States, there are age limits of 18 years, with no close-in-age exception. In Mexico, it's 12 years. So we're in that spectrum. We know that in Europe it's essentially a mixed bag between 14 and 16, some with close-in-age exception, some not. I think that's one of the contexts.
The other context that is very important to remember is that this is a committee that has a legislative and political aspect to it. And while I myself will support this bill, what made it palatable, despite the rhetoric of the continual efforts to get laws like this, is that this is the first time that a close-in-age exception of five years has been tabled by way of legislation. That makes it palatable.
Perhaps I could be further persuaded, through the eloquence of Mr. Trudell and others, of a presumption. I think that's a good suggestion.
But this is what we've been presented. We're happy with it, to some degree, but we must underline, as the official opposition, that it's piecemeal, that it doesn't take into account the glaring paucity of any reference to anal intercourse. This is a glaring hole, and it should have been addressed.
If this act were not purely political there would have been more of an omnibus nature about it. But we're here, and this is what we have, and frankly, I support it.
I heard some very interesting testimony. I have two questions. One is to the B.C. Civil Liberties Association, and the other is to the Elizabeth Fry Society—and it picks up on your comments. It's the whole aspect of minors—people under 18 in the provinces like Ontario, and 19 in the province of New Brunswick. It's a hodge-podge. To quote our neighbours to the south, you can be old enough to go to war and lose your life, but not to drink in the state of Texas. We know that everything from Texas, politically, doesn't make sense. But in this country, looking in the mirror, we see we have some problems in terms of age discrepancy with respect to certain rights. I know the Civil Liberties Association would be very interested in those anomalies. Frankly, because I don't follow it that closely, I've yet to have a lot of information from what work you're doing either in B.C. or across Canada with respect to those anomalies.
I'd like to hear a little bit about that, because we're under time constraints, keeping in mind that you have to share your time with the second question, which I'm putting to Ms. Pate.
Ms. Pate, you said, and this is as close to a quote as I can get, “There is a political and practical reluctance to enforce existing laws.” You went into one example. I'm very much interested in that, because as you know, we believe that police forces are under-resourced and that they have to cherry-pick what laws they are going to enforce. Sometimes judges do this. Sometimes prosecutors do this. Rather than throwing legislation and letting it stick on the wall—most of it poorly written, like on the back of a napkin in the parliamentary secretary's office, perhaps—we need a more comprehensive enforcement policy and to resource that.
Those are my two brief questions. I would ask you to respect the time in answering those.
I want to reiterate. We've had several committee meetings on this already and have heard from a great panel of witnesses both today and in the past. Oftentimes the conversation turns around children's sexual rights, the rights of young people to engage in sex, mostly with other young people.
With respect to those who are raising that issue, I think this bill fully contemplates that. The bill we've brought forward has a close-in-age exemption that fully prevents any criminalization of activities between peers, with a five-year close-in-age exemption.
What this bill aims to get at—and we heard this in our previous panel, and I'd like some comment on it—is that we hear of those who actually treat Canada as a haven. They may come from a jurisdiction where the age of consent is 16. I'll use the example of a 50-year-old male, but we could use the example of a 40-year-old male or a 30-year-old male or a female.
I just read this morning about a case of a female where the age was reversed, but a significantly older person who wants to have sex with a 14-year-old or a 15-year-old. In their home jurisdiction it is completely prohibited, because the age of consent is 16. In Canada, the age of consent is 14. Now, there are categories whereby a 14-year-old would be protected if there were an exploitive relationship. That has to be proven.
What we have is a situation where society has said to us, and parents have said to us, they think this is already illegal. That's the evidence we heard. We've heard from witnesses who say that when they tell parents that a 40-year-old can have sex with your 14-year-old, they're shocked. They think this is already against the law.
What this bill aims to get at is to send a message to individuals who would like to come to Canada or are in Canada and want to have relationships with people who are significantly younger, 14 and 15 years old, that this is not going to happen, that it's against the law.
I'd like a general comment on how we've addressed the close-in-age. There may be some in this panel who think that “close in age” should be more than five years, and if that's the case, I'd like to hear arguments to support it.
I guess my question is—what this bill gets at is not about teens having sex with each other—whether you think it's ever appropriate for, as an example, a 40-year-old or a 45-year-old man to have sex with a 14-year-old. Is it ever appropriate in our society for someone who is 20 or 30 years older than a 14-year-old to have sex with them?
I'd like to ask two questions.
First off, I'm quite pleased to hear your testimony and I thank you for having taken the time to meet with us.
However, I must admit I'm of a liberal bent when it comes to having an open mind. I believe that those who stand opposed to this bill have not given us very compelling arguments. Obviously, I'm not denying that young people who are 13 or 14 may show great maturity. However, when we legislate, we do so for society as a whole.
I'd like to get back to the constitutional aspect, because it is interesting.
I have a hard time with the argument according to which if we set the age of consent at 16 in a bill, with the close-in- age exemption which you are aware of, it could lead social workers, health care professionals or teachers not to provide information on sexual health, hygiene or protection.
It isn't easy for 13 or 14 year olds to talk about their sexuality. I understand there may be some taboos and some prudishness. Several members of the committee referred to sex education, and I agree with that. However, I don't think it is unreasonable that at 16, we consider that, except when it comes to teenagers exploring their own sexuality, there should be some type of a framework.
I would like you to expand a bit on what you were saying regarding this bill possibly making those who need information and those who must provide it more vulnerable.
Make sure your comments are brief and punchy, as though you were trying to impress your date, because I have a second question for the professor from the University of Ottawa.
I am the mother of a teenaged son, and when I was preparing for this I had some discussions with my son's friends and my daughter—who is pre-pubescent—and some of her friends, and in a very interesting way, the least informed were the most supportive. Let me put it that way.
I had thought about it, and in fact Professor Gilbert and I had some discussion about the whole issue of consent to medical treatment. We talked specifically about young women, and we wondered whether a young person going in to see her doctor, if there was a sexually transmitted disease or some other sexual health issue and she knew that her partner was beyond the scope of the five-year age, would report that, and what the consequences would be if she refused to report.
I suspect there are others, and probably Professor Gilbert herself has more information. I think there would be ramifications. There certainly are now if young women recant or don't report or withhold information in situations where the criminal law presumes that they should be providing that information, so I think there very likely would be concerns in that area.
Also, when I was talking with some young people yesterday at a birthday celebration that involved young men and young women, many of the young women said that they not only wouldn't report, but they might not even go to the doctor if they were fearful of that, and that caused me great concern. Young people, including my child—My son doesn't necessarily report everything to me. I don't presume that I'll get it. But I thought that if they would tell me that in a fairly open discussion, I'd be concerned about what else they might not talk about. If they would say that they might not actually report the sexual activity, that's one thing, but more importantly, if they wouldn't seek assistance, that was a much graver concern.
If in fact our interest is, as I think it is for all of us, protection of young people—and in my case I agree that some of it is maternalistic—I would want to think that even if my child were participating in a relationship that he or she was not comfortable telling me about, he or she would be comfortable going to their doctor, to whom they do go and have private conversations, and would be able to feel comfortable in disclosing. Now I'm not so sure that would be true.
I could raise other concerns, as a parent, of course, in another context, but in this particular issue I was surprised to hear that. I was surprised to hear it from a young woman who I don't know particularly well.
Good afternoon and thank you for your testimony here today.
I have a question for Ms. Daphne Gilbert. Earlier on, you drew my attention to a question Mr. Bagnell also referred to. You referred to the solemnization of marriage in the provinces and territories. If you take the Yukon, for instance, the age is set at 15. Formerly, in the province of Quebec, the age was set at 12 and 14. However, although marriage is a federal area of jurisdiction, its solemnization is provincial. Perhaps that distinction should be made.
Canada is a multi-ethnic country, so there are a number of customs here and we must show great respect. I don't know if you live in Ontario, but if so, you know how close Ontario was to having Sharia law passed as a way of settling matrimonial problems. Sharia law recognizes marriage at a far younger age than we do. Imagine the situation which would have occurred if Sharia law had passed by a single vote at Queen's Park. What would have happened today and what would we do with this bill? The same problem arises in the Yukon, where under the law people can get married at 15. Sharia law almost became a reality in Ontario. I understand that there may be a constitutional problem here, but it cannot be solved. It is a chicken and egg situation: which one came first?
Was the constitutional problem you are raising not already settled, specifically in the province of Quebec, where people could get married at 12 and 14 pursuant to the Civil Code which, it should be noted, dates back to 1866? Try to explain your views on this. I will try to follow. I can understand why Mr. Bagnell has some concerns, I do too. The questions do not only relate to the Yukon. You almost had the same problem in Ontario.
Thank you very much for your presentations. I have a couple of questions that follow on suggestions or recommendations that were made by witnesses earlier this morning. Before I ask them, I'd simply like to address the issue of the lack of consultation with teenagers.
Normally a government that is thinking about bringing about a substantive change to a particular legal framework or law conducts what's called pre-consultations. It actually informs the public that it's thinking of changing a particular law, and it asks for people and organizations to write in, to e-mail, and to send in their views, and there's a deadline. Once everything is received, it's all collated, and the basic views that are received are summarized.
The government then organizes panel discussions, round tables, or whatever, with a representative number of stakeholder groups. Only then does the government actually move forward with actual legislation, which is then tabled in the House, etc.
I'm not aware that this government did that. I am aware that the complaint we hear regularly on other bills is that there was no pre-consultation and the traditional process was not respected. That is an issue you may wish to take up directly with this government.
My questions follow on the recommendations of previous witnesses and are on the issue of the discriminatory section, section 159, which criminalizes anal intercourse if you're under the age of 18. It's criminal right now, even with the age of consent at 14. It doesn't change anything for anal intercourse, regardless of what the age of consent is; if you're under 18, it's a criminal act.
First of all, that has been judged to be unconstitutional by a number of provincial courts, and at least by the Court of Appeal for Ontario, but it hasn't gone all the way to the Supreme Court of Canada. It should be null and void. The government should in fact repeal the whole section, and it had an opportunity to do so with . Had the government done the pre-consultation, perhaps they might have heard from sufficient witnesses and legal experts that they would have included it.
Under our rules here in Parliament, because that section isn't touched by , it means that if we attempt to bring an amendment that would repeal section 159, it would be deemed out of order. Some witnesses have suggested that we should in fact amend section 150.1 of the Criminal Code, which is dealt with in , by adding section 159. I'd like to know if you have any comment on that. That would be a stop-gap remedy until the government, in its wisdom, finally repeals section 159 in its entirety.
There's a second point that I would like your comments on. There has also been a suggestion that rather than having a hard and fast law saying that if the difference in age is five years or more it's automatically deemed a sexually exploitive relationship and there is no defence, it should be presumed to be a sexually exploitative relationship, in which case it would allow for that to be rebutted. You would then have the possibility of someone who is 22 years old with someone who is 16 years old, and they would be able to rebut that. That's my second question.
If I have time—
Thank you, Mr. Chairman.
I've heard a few comments I'm going to respond to and then I'm going to have a question for Mr. Quist.
One comment I heard at the beginning of this hearing was that a lot of young people are against this. I wanted to note that I received two petitions in my riding from youth groups that were profoundly in support of this legislation, one from St. John Vianney Church, the other from St. Mary's Church. They were from hundreds of young people who very much admire the direction we're seeing in this Parliament—and not just from the government, a lot of parties are supporting this—that it is the right thing to do to protect children.
I also heard a comment that this is an erosion of a youth's sexual autonomy. I'd like to note that this is not an erosion of a youth's sexual autonomy. If a 15-year-old were having sexual relations with a 17-year-old, there's no erosion there. They may choose to do that. But what this means is that it's an erosion of child exploitation, and that's something to be very proud of. It's an erosion that someone who is 50 will not be allowed to have sex with a 15-year-old. That's the only erosion happening, and I think that's something that a lot of young people will be very much in support of and would be very proud of.
I also heard the comment that this is a move toward fundamentalism, and I found that very surprising. I think that characterization would be saying that mainstream Canada is moving toward fundamentalism. Because that's what this is. These are mainstream values. To use the legal term, if you're going to take judicial notice of something, I think it would be safe to say that the majority, the vast majority of Canadians, believe that it's unacceptable to have a 50-year-old having sex with a 15-year-old. This legislation is about the protection of children. Bottom line, that's what it's about. That's why it's getting so much support across political lines.
This legislation is very helpful for that. That's why we've been seeing these white ribbons across the country, wherever we are gathering steam, gathering support. By and large, Canadians of all age groups, in all regions, are very much in support of this legislation.
I think there are many reasons for that, but Mr. Quist, could you talk to us about the long-term consequences of this? To give you a few areas I'd be interested in, one is for children who are exploited in an area this legislation's potentially going to protect. Obviously we're never going to protect against every abuse, every crime, every exploitation, but for the ones that it may help, that this stigma may be there and may prevent a future crime, what are the benefits that's going to have in terms of people who may not have that erosion in their lives? For those who are exploited, are there greater rates of family problems? Are there greater rates of divorces down the road? Are there higher incidences of drug use? Are there higher incidences of crime? Is there any evidence your group might have that would suggest those who are abused or exploited at a young age have their future prospects damaged?
If someone's exploited at a very young age, I think one concern that many would have is that we are damaging their growth so much. It would be interesting if any studies highlight how that affects them, not just in the immediate tragic moment, but 10 years down the road or 20 years down the road, in terms of what happens to these victims.