If I can go back to amendment NDP-1 to this extent, it was an amendment to proposed subsection 150.1(2.2), which would have been dealing, in effect, with the transition paragraph in the existing draft bill. I've moved the amendment that I was proposing for proposed subsection 150.1(2.2) into proposed subsection 150.1(2.1), thereby creating what in effect are new defences to the charge in sections 151, 152, 173, and 271.
The end result of this amendment would be to create what in effect would be two new defences in addition to the five-year near-age defence, if the couple was married or living...that's in the new paragraph 150.1(2.1)(b), or in (c), the relationship was a common-law relationship or a child had been conceived of the relationship, always with the provision that the relationship cannot be one that's abusive or exploitive, which is what paragraph (d) deals with. So that's a continuation of what's in the existing bill.
If I can add to this, the effect is that if we were to pass this amendment, I would then be moving to delete proposed subsection 150.1(2.2), because it would be redundant. At that point, it would no longer be necessary. The provision that's in the existing bill would no longer be necessary. I think that would be an inevitable result if we passed this amendment to proposed subsection 150.1(2.1).
If I can conclude with this, what I'm addressing here is the concern that I raised on Tuesday and the debate we entered into around the roughly 3,000 couples a year who are married or living in a common-law relationship. We don't know—we couldn't get that information—how many of those relationships may be of less than a five-year age differential. What I'm in effect attempting to do here is to protect those relationships from criminal sanction. As much as we did in the committee's work, which was fairly extensive on this point, we simply could ascertain how many of those in those marriage or common-law relationships were in a greater distance of age than five years. That's what it's designed to do, to protect us from criminalizing those relationships.
I think those are all my comments. Thank you, Mr. Chair.
Yes, I do. I think this also will help to clarify some of the information that we had before the committee on Tuesday.
Reference was just made to the number of couples; it was 3,000, or something in that range. Between the last committee hearing and today I did follow up with my colleagues at the Canadian Centre for Justice Statistics, the two witnesses who appeared before this committee, Karen Mihorean and Lynn Barr-Telford. We discussed the numbers that had been provided to the committee, which were that 0.07% of 15-year-olds were estimated to be involved in married or common-law relationships, and she had said as well that translated into 72 per 100,000. That's not for the total population of Canada, but for the estimated population of 15-year-olds.
On that point, to clarify, we don't have these data yet from the 2006 census on age and sex. What StatsCan does is work with the data that are available from the last census, 2001, and then project what the estimated population will be of that age group for the year in question. If you follow that through, what they've projected is that the 0.07% gives 316 as the number of 15-year-olds estimated to be involved in a legally married relationship or in a common-law relationship for 2006. That breaks down to 108 15-year-old boys and 208 15-year-old girls.
It's correct, as has been noted this morning, that we don't have the breakdown of what percentage of those relationships would fall within the five-year close-in-age exception as proposed by Bill , or how many would now be caught because the partner is more than five years older. Bill C-22 contemplates those relationships that would exceed the five-year close-in-age exception and provides a transitional defence for those existing couples who meet that definition. Of the 316, based again on Statistics Canada's projected estimates of how many were legally married at age 15, the number I provided on Tuesday to this committee was five in total for Canada for the year 2005. Obviously it is not necessarily an exact science. If we take the 316 married or common-law projected for 2006 and take off that number of perhaps five--a handful--it leaves almost the entire group of 15-year-olds involved in a common-law relationship.
In the time I had available to me before today, I can't confirm to you with certainty that there are no 14-year-olds at all in those relationships, or that StatsCan doesn't collect the data for 14-year-olds who may be married. Prior to this it was my understanding that they don't collect the data on 14-year-olds, but I can't confirm it. The best information I can provide to the committee is that perhaps in the neighbourhood of 300 common-law relationships currently exist, and a handful of legally married.
From there, in terms of trying to understand if there will be a conflict between Bill and the age of consent and how provinces deal with age under their solemnization legislation, I have said in providing an overview to this committee that under the provinces' and territories' solemnization legislation--that is, who can obtain a licence to marry--three provinces do not allow anyone under the age of 16 to marry or to obtain a licence. Those are Quebec, Newfoundland and Labrador, and the Yukon Territory--so in three out of the 13 jurisdictions, it's never.
In the rest of the jurisdictions, four will grant an exception under the age that they set--meaning someone under the age of 16, or 15 in the two other territories--provided the female is pregnant. That means Alberta, the Northwest Territories, and Nunavut—in those two territories the age is 15 for solemnization of marriage—and also Prince Edward Island; it's 16 there and 16 in Alberta. In those four jurisdictions the decision is made by a judge, and again, it's on the basis that the female in question is pregnant.
If I translate that to how this plays out with Bill , that means the person seeking approval to marry has already been the victim of a sexual assault under Bill C-22.
In the remaining provinces the criteria change a bit for one that's similar to what I've just described--a female is pregnant. In Manitoba, basically the court has the discretion to issue the licence, where the young person is under the age of 16. In 1970 the legislation used to be that if the girl was pregnant, it was an automatic right. They changed the legislation. So it's no longer an automatic entitlement; the judge has to consider the circumstances in the case.
In New Brunswick, for example, the marriage has to be shown to be proper. In Nova Scotia, it's expedient and in the interests of the parties. In Ontario, the circumstances justify the issue of the licence. In Saskatchewan, a court judge can do so retrospectively, if the parties have already consummated the relationship or have lived together by the time they apply for the licence.
To sum up the state of the marriage laws in the provinces, the majority either do not allow or only allow under the age of 16 where the girl is pregnant. The others look at the circumstances of the case.
I'm not sure if this would help you, but I can give you an example of how a court goes through the considerations of a marriage licence application.
There is a decision by the name of Al-Smadi, father and extra friend, from 1994, Court of Queen's Bench of Manitoba in Winnipeg. In this reported case, there was a 15-year-old girl seeking to marry her 27-year-old boyfriend. She was living with her father. The father was consenting to the application. The question before the court was whether it was appropriate in the circumstances to issue the licence to this 15-year-old girl in that relationship.
In the first application there was no evidence before the court that she was pregnant. The court, in that case, decided against approving the marriage. It wasn't in the interest of the child in that set of circumstances.
Either she knew she was pregnant and had not disclosed it or she subsequently became pregnant and the matter returned to the court. Recognizing again that the court had the jurisdiction to grant the exception, to issue the licence, the court in those circumstances did allow the marriage to proceed because she was pregnant at that point.
I have not been able to identify a lot of reported cases. I don't mean this to be cited as an example that they're all like this, but it's an example that the committee may find helpful in their deliberations.
Yes, there are some couples who would be affected right now if Bill were to come into force. Bill C-22 contemplates that and provides an exception.
I believe a question on Tuesday was this. If you don't meet the definition, for example, of common-law relationship--the couple hasn't been residing together for one year or more or they haven't been residing together for a shorter period of time and they aren't having a child or haven't had a child together already in that relationship--what happens?
Obviously, when Bill was being developed, the considerations were that if you were going to propose a change in the law, there was going to have to be a line drawn, and how would you justify where the line was drawn?
There is a varying treatment of what constitutes a common-law relationship across the country and the provinces for the purposes of family law. The Criminal Code already provided a definition of a “common-law partner”, which was a conjugal relationship of one year or more. So Bill says that there is an established definition, an established understood context, but recognizes, again, that you could have a shorter period of time and you could have a child born of that relationship or expected, which is not inconsistent with what the provinces do in terms of how they establish common law for provincial purposes.
So Bill will affect some existing relationships. It does provide exceptions for those limited, established relationships. It will prevent or criminalize new relationships formed after Bill C-22 comes into effect, on the basis that Bill C-22 would say if you're more than five years older than a 14-year-old or 15-year-old youth, it's against the law. That would be the intention or the objective of Bill C-22.
Two years ago I had spoken to this committee on the former bill, Bill , on the protection of children. We had some information provided to the committee that looked at what we knew about the age of the partners of these 15-year-old youths. The information had been provided to this committee in a chart form that had been prepared by Statistics Canada, the Canadian Centre for Justice Statistics. It generally showed that most of the partners who were identified through the 2001 census data were over the five-year close-in-age exception. We can't explain the nature of that.
Two years ago, in the context of proceedings under a former bill, Bill , the Department of Justice had furnished some information to the committee that talked about what we knew about 15-year-old youths in relationships, either legally married or common law, and the age of their partners.
I believe Mr. Comartin referred to this chart previously, and I know others have looked at it. I can table a copy, if its publicly available information, in English and French, with the clerk.
The information shows that for the 2001 census data, for 15-year-old youths who had reported being in a married or common-law relationship, the majority of their partners were over the close-in-age age group and were more than five years older. We don't have any data to explain how or why that is.
There's no question that we have limited data, but there is some data to show and confirm to the committee that some relationships will be affected. contemplates that. Beyond that point, further relationships will be affected. The object of the bill is to prevent a 25-year-old adult from moving in or engaging in any kind of sexual activity with a 14-year-old or 15-year-old youth.
One last point I will remind the committee of is that the definition of sexual activity within the criminal law context is not only sexual intercourse. That's what many people have in mind when they think about these types of relationships. It's all sexual activity, ranging from touching through to and including sexual intercourse. It may be that a couple hasn't perhaps consummated a relationship, but they may still be involved in a sexual relationship.
The intent of addressing this through is to provide comprehensive protection for 12-year-old or 13-year-old youths and in fact all Canadians. If it's non-consensual and it's a whole range of sexual activity, it would apply and would be caught by Bill C-22.
I just have a few questions for Mr. Comartin, questions of clarification.
One, the law we are looking at basically would grandfather the pregnancies, the marriages and the common law. What you're basically doing is making those exemptions permanent so that in future.... And it sounds like instead of 3,000, it may be a couple of hundred people a year who normally would get into these types of relationships. Now those will be legal. For instance, if someone can hide the fact they're doing an illegal relationship for a year, then they're common law, and they would have a defence. I want to make sure that's what this amendment does; I think that's what it does.
Second, I thought the reason we had moved to Thursday was that you were going to try to tone that down a bit to make it something that would be acceptable to the Bloc. I thought that was the reason we'd put it off until Thursday.
And third, if this doesn't pass, would you be willing to debate just having the marriage as the one permanent exemption and not the other two?
I forget what your first question was, but the answer I wrote down was “yes”.
No, the intent is to make it prospective, not just retroactive, not just grandfathered.
As to question two, with regard to toning it down, I did not think that, actually. My response here, in terms of changing the amendment, was that, in response to the suggestion from Mr. Lee, it was more proper from a drafting standpoint to put it in as a defence rather than to try to deal with it in this transition paragraph, as the government has done.
I thought I'd made it clear on Tuesday that what I was trying to do was provide protection to what I thought at that time was the potential for as many as 3,000 relationships to be criminalized on an ongoing basis. As I said to Mr. Dykstra, I think it's unrealistic for us to expect that at least a good number of those are not going to occur, and to criminalize them, I just wasn't prepared to do that.
Third, Mr. Bagnell, would I be satisfied with just the marriage? I guess my answer would have to be that you'll have to move that amendment if mine doesn't go through. Or perhaps you should move it now and delete the other parts of mine.
I'm having some difficulty accepting, as you can tell from my exchange with Ms. Morency, that there are only five marriages. I think we're talking a substantially larger percentage of those 200 to 300 annual relationships that we're trying to deal with here. I think there are more marriages in there that Statistics Canada just isn't catching. I'm not going to suggest it's even 50%—I don't think it is—but I would guess the rest of the numbers are about 50 to 100, somewhere in that range.
It seems to me that what I'm doing here in my position is, one, I'm agreeing that we should raise the age of consent in this country across the board to 16.
We should make some exceptions to that, significant ones in the five-year near-age defence. That's going to catch a significant number of relationships. We saw the numbers: 40,000 to 50,000 will be caught; that is, the near-age defence will protect those relationships.
What we're down to is a very small number of relationships for which I also want to provide a defence. One is the married, on an ongoing basis, people who have gotten married. You can see it any number of ways, even some coming in as refugees from other countries already married, not voluntarily. I know that in the immigration laws we don't recognize those marriages if one of the members of the couple is under 16, but if they're refugees, they may get into the country. So we'll have some of those.
We will have some, and I'm going to use the Territories as an example, where marriage may in fact be.... Granted, we're going to be into a constitutional fight for those. And again, we're talking small numbers.
Then we're going to have, and this is where the larger numbers are, probably 200 to 300 a year.... I don't see those common-law relationships stopping, as much as we're trying to protect it, and in the vast majority of cases those relationships are just going to be slightly over the five years, like the case that you heard from Winnipeg.
I can answer that, Mr. Chair.
There are really two parts to that. My primary concern would be if there has been a child who has been born or is to be born of that relationship. So it's a relationship that's in existence and the female in the couple is pregnant or has had a child. It's worrisome that we would criminalize that, even if the age is greater than five years. We're looking at it as a stable or semi-stable relationship and then criminalizing it. That one gives me great, great concern.
To a lesser degree, and I'll concede that, if they have been living together for a year or longer and we have a stable relationship, should we be criminalizing that? We're recognizing--I'm sure I'm going to hear this from Mr. Moore--that as the relationship starts it is a criminal offence. It's the reality of what we're going to be faced with. There are going to be cases, which are going to come before criminal courts, where we have a relationship of a year or longer, there is no child, and we're going to say that's a criminal act. We're still going to see those cases. I've practised enough family law and criminal law to tell you that we can draft and pass whatever laws we want, but in the extreme cases we are not going to be able to avoid this.
I guess this is the other point that Mr. Moore will make, so let me anticipate it. Will that in effect undermine the whole legislation? I don't think so. The message is going out very clearly from this bill, from this House, that we are raising the age of consent in this country. So it will be the exceptional cases, the 200 to 300 a year, that we're dealing with.
I want to thank Mrs. Morency for the clarification she's brought.
In the context of the amendments Mr. Comartin is suggesting, I want to be clear in my own mind, so I'm going to give a hypothetical situation.
On December 31, 2007, a conjugal relationship begins between a 15-year-old girl and a 20-year-old male. On January 1, 2008, Bill , as it now is--if the version the government has tabled is adopted--enters into force. On February 1, 2008, a month later, criminal charges are laid against the 20-year-old male, because the relationship is illegal, if I'm not mistaken, or you can answer that. On March 1, 2008, the young woman becomes pregnant. He's been charged, but he's out on bail. They managed to hook up at least once. She doesn't know she's pregnant. By the time he comes to trial, she's out to here.
In that circumstance, if in fact when the legislation came into force, given the relationship, he was committing a criminal act because the conjugal relationship began before, or the first sexual contact began--she's not pregnant when he's charged, she does become pregnant following the criminal charges--would they be able to go before a judge, in the jurisdictions that allow for “under-16 who are pregnant”, to apply for a marriage licence? And would a defence be provided him?
I see the logic of providing a defence, a very limited defence, as is proposed by the amendment, but I'm not inclined to support that the defence include the category of cohabitation simply as cohabitation. Because what we're actually trying to criminalize here is cohabitation when they're not close in age. We're actually saying, from a public policy point of view, that the 25-year-old cannot cohabit with a 15-year-old or a 14-year-old. We're saying that it's criminal.
So to reach back and say that it's okay if she's pregnant or if you can make it last 12 months simply induces the couple to either have a pregnancy or make it last 12 months. But we're actually trying to criminalize that circumstance. We want it to be criminal. We don't want it to be there. So I'm not inclined to provide a permanent defence for that, although we have provided a limited-time, transitional defence for that type of relationship, and that makes sense.
What I am inclined to favour is an exemption where there is a marriage, but I do that only because I think that in every case where a marriage of this type exists, it's because a judge has already said yes, there's a marriage. And that would be a marriage legitimized by the state through a court, or maybe legitimized by a religious ceremony. It may be the full monty of a marriage, and yet, if we don't change the law the way we have it now, we're going to reach back and criminalize the marriage.
Now, some will argue that by criminalizing it there will be a lot fewer of these marriages, because the judge who would approve such a relationship would say that we're actually not very inclined to have these relationships, so he's not going to approve the marriage. But on the theory that the provinces do allow judges to sanction these relationships as marriages, I'm very disinclined, on a public policy basis, to reach back and criminalize what a judge is otherwise capable of doing.
I would limit the exemption only to the situation where the couple is married. If they're married, that's cool. But you have to get married, and in order to get married in this circumstance, you have to go to a judge. And I say that the Criminal Code should recognize that if a judge says it's okay to marry, then I don't want to reach back and criminalize what a judge is otherwise able to do.
So I would support the continuing defence for a couple that is married, but only for that.
I agree with much of what Mr. Lee has just said, and Mr. Comartin was right on one of the points I was going to make, so thank you for making it for me.
I think, very clearly, in the case of marriage or common-law, we're not reaching back with this legislation, because we have the transitional provisions. The practical reality is that in a few jurisdictions in Canada, if you're under 16, you just flat out cannot get married. So the marriage exemption wouldn't apply.
In other jurisdictions, where a minister or a judge looks at the situation.... For example, in Nunavut and in the Northwest Territories, for them to grant that exemption, the female has to be pregnant. So in order for the marriage to be granted for that person who's under 16, the offence already has to have taken place.
A voice: Those two territories are not--
Mr. Rob Moore: Well, that's the information I have.
I find the discussion interesting to a great degree, and I appreciate Mr. Comartin's experiences as a lawyer in family court, dealing with these kinds of issues.
I hope he, in turn, will appreciate the things that I experienced as a school principal, which involved the 40,000 or 50,000 or 60,000 that were mentioned, who live in these relationships without the permission of the parents. The parents want their kids out of these situations.
So this bill fulfills that. That's the main purpose of this. I appreciate all the discussions, but I think we're getting into a little bit of nitpicking--and that may not be a fair word--about what we're trying to accomplish with this bill.
I do think Mr. Moore pointed out that the bill was constructed in a way that will take into consideration those kinds of relationships that we don't really want to criminalize. But we have to start thinking of the 40,000 to 50,000 to 60,000 kids who are living in these relationships because they think they're old enough to make these wise decisions and the parents are insisting they can't, yet the parents have no avenue.
Let's help the situation by moving forward with this bill. I call for the question, Mr. Chair.
I'm looking at the amendment, and I appreciate what Mr. Comartin is trying to do, but I think we have to remember that we're all in agreement on the issue of protecting people under 16 from exploitative relationships. We've been going over this for some time now on the five-year close-in-age exemption, which is a very clear and powerful and broad exemption that protects against criminalizing teenagers and their relationships.
I think we have to remember why we're doing what we're doing. It's to prevent young people who are under the age of 16 from exploitative relationships. I and the government are not interested in creating an exemption--which I feel, incidentally, would be an unconstitutional exemption--an exemption where someone's married. We're not interested in creating an unconstitutional exemption or a loophole.
We've seen in some U.S. states where these loopholes exist, and I don't think that's the way we want to go, to say to someone, you can avoid what would otherwise be an exploitative and criminal relationship by getting married to this young person. And we've heard testimony here where a young person has left home, and the parents go to the police and ask, “What can I do? My 14-year-old is living with a 27-year-old, and they won't come home.” The police say, “There's nothing we can do.”
So around this table we've all been in agreement that that's what we wanted to address. Now we're saying that if these people are married we want an exemption to that. I'm not in favour of creating that loophole, pushing people, making a bad situation worse, probably in many cases making a bad situation worse.
We've seen what some American states have done. It's not been successful, in my view. Although I appreciate the effort that's gone into crafting this amendment, I won't be supporting it.