Bill C-22 (Historical)

An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act

This enactment amends the Criminal Code to raise the age, from 14 to 16 years, at which a person can consent to non-exploitative sexual activity. It creates an exception in respect of an accused who engages in sexual activity with a 14- or 15-year-old youth and who is less than five years older than the youth. It also creates an exception for transitional purposes in respect of an accused who engages in sexual activity with a 14- or 15-year-old youth and who is five or more years older than the youth if, on the day on which this Act comes into force, the accused is married to the youth. The exception also applies to the accused if, on the day on which this Act comes into force, he or she is the common-law partner of the youth or has been cohabiting with the youth in a conjugal relationship for less than one year and they have had or are expecting to have a child as a result of the relationship, and the sexual activity was not otherwise prohibited before that day.

[Kevin Kindred]

I have heard that argument. I believe it was part of the submissions from EGALE Canada and possibly other groups. It would be speculative for me to give an opinion on a charter issue on that, so there's not much that I can say on it.

What I can say is that the CBA does support the age of consent as currently set out in Bill C-22, and to that extent, we don't raise the same argument that Egale has made on that point.

[Martha Mackinnon, Executive Director, Justice for Children and Youth]

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 C-22 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 C-22. 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 C-22 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 C-22 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 Bill C-22 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 Bill C-22, 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.”

Thank you.

[Margaret Gallagher, Treasurer, National Criminal Justice Section, Canadian Bar Association]

Thank you.

As we've set out in the letter that Ms. Thomson has referred to, the CBA is very mindful of the fact that children must be protected from sexual exploitation by adults. We are also aware that the existing age of consent might contribute to sexual exploitation in some cases.

It is a reality that some young people engage in responsible and healthy sexual activity within consensual age-appropriate relationships, and this activity should not be criminalized. If the age of consent is to be increased, it is also appropriate to increase the close-in-age exemption.

Because Bill C-22 does this in a fair manner, the CBA supports the amendments proposed in the bill. However, to ensure the objectives of this bill are met, it is important that the law be fairly and consistently applied.

Mr. Kindred will speak to this issue.

[Tamra Thomson]

Thank you, Mr. Chair and honourable members. The Canadian Bar Association is pleased to have this opportunity to speak to you today in support of Bill C-22.

The letter we have provided to you analyzing the bill has been prepared by our criminal justice section, which has among its membership both crown and defence counsel, as well as by the sexual orientation and gender identity conference.

The mandate of the Canadian Bar Association is to improve the law and the administration of justice, and we have analyzed the bill within that optic.

I'm going to ask Ms. Gallagher to speak about the Criminal Code aspects of the bill, and then Mr. Kindred will address some things that we think would improve the bill even more.

[Lynn Barr-Telford, Director, Canadian Centre for Justice Statistics, Statistics Canada]

Thank you for the opportunity to present to the committee, Mr. Chairman, data relevant to your consideration of Bill C-22. 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 Bill C-22 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.

Thank you.

[The Chair, Conservative, Art Hanger]

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 Bill C-22, 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.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

The matter we're studying involves the age of consent. And it's a fairly technically worded bill. It's a complex little sucker, and I do not understand why we have to do an on-site visit to a police office to better understand the bill. I can understand why we went for the DNA bill, but not on Bill C-22. I recall some reference to child pornography from that witness. But this has nothing to do with child pornography; it's got to do with 14- and 15-year-olds' consent and some other add-ons to protect 14- and 15-year-olds.

So at this point, I am fully opposed to what's taking valuable committee time. It has nothing to do with the money; it's taking valuable committee time out from the study of Bill C-22 to go and do an on-site visit. So I am opposed to it.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My question is for Ms. Tremblay or Ms. Roy.

You talked a lot about the fact that it is necessary to educate youths in the context of Bill C-22. Naturally, at the federal level, we don't interfere much with provincial jurisdictions. You addressed one aspect of evidence, professional secrecy. This issue is usually managed by the provinces, that is to say doctors, priests and, in a wider sense, nurses, psychologists and so on.

You said you were afraid that youths would not consult persons to whom they could disclose their problem, out of fear of being “betrayed” by those persons. You surprise me somewhat. In Quebec, professional privilege is absolutely protected by the Code of Civil Procedure. I would like to know how, in your opinion, a professional could betray the trust of a youth to whom he has provided medical care, for example, even if that youth is of the age in question in Bill C-22.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I'll try to be really brief.

If you don't have an opportunity to respond, because we only have three to four minutes before the committee adjourns, I'd ask that you respond in writing.

The first point is that the age of consent is 18 for a number of sexual activities. It criminalizes a number of sexual activities--exploitive sex, etc.--in the Criminal Code. I think a certain amount of your concern is that regardless of the age of consent, whether it's 14, 15, or 16 years, there's a whole section where if you're under 18, the individual is over 18, and it's exploitive, it's criminal activity. I think that should remove a major part.

One of the things I'm hearing on the issue is that there will no longer be any kind of discretion on the part of the judge when the age difference is five years or more. You've witnessed cases where there is a sexual relationship and the age difference is five years or more, and in your expert opinion, given the work you do, it's not exploitive and the older individual should therefore not be criminalized.

My question to you is this. If there were some way to amend Bill C-22 to ensure there is still a certain level of discretion for judges to actually look at the nature of the relationship, and if they deem it's not sexually exploitive and would therefore not criminalize the older person, would that provide a level of comfort? That's the first question.

Secondly, in terms of harmonizing the age of consent for all kinds of sexual activity regardless of the age level—and I'm talking about section 159—we've been told it's outside the scope of the law as it has been presented here. It would literally mean the government would have to do it themselves through another bill--and I'm sure they would get agreement on from the opposition to hopefully fast-track it--or through a private member's bill, in which case it probably wouldn't see the light of day for months, if not for years.

You might want to again ask the government to harmonize the age of consent for anal intercourse, because that's what we're talking about. I'm talking to everyone who's in favour of having it harmonized so that we're not discriminating among sexual activities based on sexual orientation.

[Carole Tremblay]

I think Bill C-22 provides the necessary leeway to allow judges more discretion regarding all the considerations mentioned earlier. Youths have this fear—in any case, we met some who have it—of getting caught in the calculation of age and of being charged with sexual assault in particular circumstances. For them, it's not easy to understand when mistaken age will be admissible or not. If only in the preamble, I think we should name these things, these fears, and allow more discretionary authority. That's one of the answers I have to provide.

My other answers would not be directly contained in Bill C-22, and I know you want to limit your question to that, but we think that every circumstance of sexual exploitation should be considered as an aggravating factor, even after the age of 18. Currently, with regard to sexual assault, the sexual exploitation of persons 18 years of age and over is not considered an aggravating factor. What is is violence and signs of injury, and so on. That definitely still takes us back to our original position.

There's something else that causes a big reaction in me as well. You know, the people we meet in the CALACS in Quebec are mainly victims, yes, of sexual assault by persons much older than they, but by persons who are in a relationship of trust with them, relations, people within the family and so on. Beyond Bill C-22, there are still a lot of changes to be made to police know-how to facilitate the judicial handling of the victims of sexual assault.

[Nichole Downer, Programs Consultant, Canadian AIDS Society]

Thank you very much for this opportunity to present to you today.

We recognize that a lot of our points have been presented. Being the last group, we would like to take the opportunity to reinforce several themes that are evident in the presentations today.

The Canadian AIDS Society is a national coalition of over 125 community-based AIDS service organizations across Canada. We are dedicated to strengthening the response to HIV/AIDS across all sectors of society and to enriching the lives of people in communities living with HIV/AIDS.

As an organization dedicated to decreasing HIV/AIDS infection rates, we are concerned about the pending legislation to increase the age of consent for sexual activity from 14 to 16 years of age. Furthermore, the proposed amendments do not address an existing law prohibiting anal intercourse for individuals under the age of 18.

The Canadian AIDS Society believes the law should not discriminate by type of sexual activity. First, there are already protections in place under Bill C-2, protection of children and other vulnerable persons. Passed by Parliament in July 2005, Bill C-2 created new protections for youths under 18 years of age against exploitative sexual activity. The Canadian AIDS Society supports this bill. Bill C-2 takes into account the nature and circumstance of the relationship, including the age of the young person, the difference in age between the youth and the other person, how the relationship evolves, and the degree of control or influence exercised over a youth under 18.

Second, increasing the age of consent could result in youths being more secretive. The Canadian AIDS Society is concerned that increasing the age of consent could result in youths being more secretive about their sexual practices and in youths not seeking out the information they need. This will place youths at an increased risk of contracting HIV and other sexually transmitted infections.

Almost one-quarter of students in grade 9 feel embarrassed about seeing a physician or a nurse if they suspect they may have an STI. Raising the age of consent could have the negative impact of further decreasing the number of youths accessing the information from health providers if they are under the age of 16. This is problematic, as research in Canada has shown that the average age of first sexual intercourse is 14.1 for boys and 14.5 for girls.

A study in Britain showed that youths are unlikely to seek information about contraception and sex if they are under the age of consent, because of worries about law and confidentiality. The studies show that youths under the legal age of consent in Britain were six times more likely than those over the legal age of consent to give the fear of being too young as the reason they did not seek out sexual health information.

Regardless of the age of consent, youths will continue to have sex, and we need to make sure they have the information they need. As we know the average age of first sexual intercourse is under 16 in Canada, raising the age of consent could result in many youths engaging in their first sexual intercourse while being fearful of accessing the information they need.

Not enough research has been done in this area to alleviate the fears that raising the age of consent could have detrimental effects on the sexual health practices of youth. Therefore, it would be irresponsible to raise the age of consent without knowing the full effects of this action. The Canadian AIDS Society supports more research being done in this area.

Third, the close-in-age exemption is not a solution. The close-in-age exemption has been used as a solution to fears that Bill C-22 will criminalize youth sexual behaviour. We do not believe this is an adequate solution.

While we understand the rationale behind the creation of a close-in-age exemption and that this exemption would be increased to five years under Bill C-22, the bill places unnecessary restrictions on youth, while not addressing the reality of sexual abuse. Given that all exploitative activity is currently illegal involving people under 18, this law makes the situation for youths unnecessarily complex.

Most youths, and even adults, do not have the legal expertise to know about the criteria and exemption, or to be able to determine if their relationship meets them. It is very likely that this exemption will be misunderstood or forgotten, and the age of consent will generally be understood to be 16 years of age. Many young people would assume their relationships are illegal and not seek the information and help they need.

Using age as a factor to determine sexual exploitation does not address the reality of sexual abuse. In cases of sexual coercion, a person is no less abused if the perpetrator falls within a five-year peer group. This legislation is focusing on the wrong group of people. Criminalizing the sexual behaviour of youths will do nothing to stop exploitative activity. As all exploitation of persons under the age of 18 is currently illegal under Bill C-2, more resources need to be devoted to pursuing cases involving sexual exploitation and abuse.

Fourth, the focus should be on comprehensive HIV/AIDS and sexual health education. School was reported as the main source of information about HIV/AIDS by 67% of males and 58% of females in grade 11. However, 27% of grade 7 and 14% of grade 9 and grade 11 students had not received any instructions on HIV/AIDS education over the past two years.

The Canadian AIDS Society is concerned that if the age of consent is raised from 14 to 16 years of age, prevention and education in schools will not be available for youths under the age of 16, decreasing further the amount of information provided to them. Research evidence has shown that in the long term, prevention messages are more effective when they're delivered early, and they are effective at reducing risky sexual behaviour. We also know there were 212,000 high school dropouts in Canada in 2004-05. The legal minimum school leaving age is 16 in most provinces in Canada. Therefore, not delivering sexual health education in schools before the age of 16 would mean that many youths are not receiving critical prevention messages.

The Canadian AIDS Society believes the government should be focusing its efforts on promoting consistent, comprehensive HIV/AIDS and sexual health education across Canada. The best way to protect and support youths is to ensure that educational services are available to inform them about their rights and options, and about the risks and benefits of engaging in sexual activity. Educating youths to make informed choices that are right for them is better addressed through parental guidance and comprehensive sexual health education than it is by using the Criminal Code.

Fifth, the age of consent should be universal and not discriminate by type of sexual activity. According to the Criminal Code, the age of consent for anal sex is 18, while the age of consent for vaginal intercourse is currently 14. Section 159 of Canada's Criminal Code states that people who engage in anal intercourse are guilty of either an indictable offence, risking being given a prison term of ten years or being found guilty of a summary offence.

The unequal treatment of anal sex has been found unconstitutional in the Court of Appeal for Ontario, the Court of Appeal of Quebec, the B.C. Court of Appeal, the Alberta Court of Queen's Bench, and the Federal Court of Canada, yet the federal government refuses to recognize its unequal treatment and change the law. The Court of Appeal for Ontario recognized the potential for harm when the age of consent is higher by striking down the age of consent of 18 for anal intercourse.

In the ruling, the judge stated:

Health risks ought to be dealt with by the health care system. Ironically, one of the bizarre effects of a provision criminalizing consensual anal intercourse for adolescents is that 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.

The Canadian AIDS Society hopes you will reconsider increasing the age of consent based on the issues raised above. The solution to protecting youths from sexual exploitation is not found by placing restrictions on them. Bill C-22 has the potential to affect the health and well-being of youths. It is irresponsible to enact Bill C-22 without solid evidence to the contrary.

Therefore, our recommendations are that more resources be devoted to pursuing cases of sexual exploitation and abuse; that more research be conducted into the impact the age of consent has on providing sexual health education and youth confidence in accessing health professionals; that section 159 of the Criminal Code be removed and the law regarding anal sex be made consistent with the law on vaginal intercourse. Should Bill C-22 be passed, plain-language information on the new law and what it means needs to be communicated to youths, particularly around the close-in-age exemption.

Thank you.

[Carole Tremblay, Spokesperson, Regroupement québécois des Centres d'aide et de lutte contre les agressions à caractère sexuel]

I'll start, and I'm going to address the committee in French.

The Regroupement des CALACS is an organization representing 30 centres for providing assistance in and combating cases of sexual assault. Our assistance centres have been in existence for 30 years and focus mainly on sexual assaults committed against adult women and adolescent girls.

My remarks will essentially concern three subjects. We have discussed Bill C-22 with youths that enter the CALACS. They clearly found it hard to understand certain things. If Bill C-22 were passed, it would be hard for them to determine in which circumstances they would be in an illegal situation, if only to know when mistaken belief would become inadmissible. These concepts are not easy for youths to understand. In our opinion, the additions made by Bill C-22 should be backed by structural steps to ensure that the new amendments to the bill are known and clearly understood.

The expression “non-exploitative sexual activity” is used in a number of places in the bill. This suggests that there is an age at which people can start to agree to be sexually exploited. In fact, the bar is set at 18 years of age. That concerns us very much and, in our view, is not consistent with promoting egalitarian values. The problem didn't start when Bill C-22 was introduced, but the fact remains that the bill does not correct the exploitative nature of the situation among persons over 18 years of age. We think there is work to do in this regard. For example, I will say that the concept of a minimum age has been in our Criminal Code for a long time, but that has never prevented people from starting to engage in prostitution.

For us, the problem is greater than the mere question of age. You have to consult qualified people and conduct research in order to understand why certain adults exploit children. Perhaps we will subsequently have to change the age of consent, but first we need to gain a better understanding of predatory behaviour and the causes of the sexual exploitation of children.

Will Bill C-22 protect these individuals from sexual predators? We fear it will create an illusion of protection. As we somewhat jokingly ask in our groups, what predator asks to see the ID of his potential victim. That's a bit cynical, but it's a fact that you note when you meet with youths who have been the victims of predatory behaviour.

If the purpose is to send more criminals to prison or to extend their stay there, the fact remains that society will not change if more structural measures are not taken. What do we mean by more structural measures? We think it praiseworthy that Bill C-22, in its present form, provides for a five-year exemption to protect the right of adolescents to disclose a sexual relationship.

In our view, however, that entails other rights, the right to receive information, sex education, sexual prevention courses, the right to condom distribution, access to abortion and so on.

In our opinion, if Bill C-22 is passed as is, the rights that must be preserved go beyond the right to sexual expression. It must cover much more than that.

[Kaj Hasselriis]

Good morning, everyone. My name is Kaj Hasselriis, and I'm the executive director of Egale Canada.

Egale Canada is the national organization that advances equality and justice for lesbian, gay, bisexual, and trans-identified people and their families all across Canada. Egale was established over 20 years ago. We have thousands of members everywhere across this country: in Calgary northeast, Scarborough, Rouge River, Hochelaga, Windsor, Tecumseh, Notre-Dame-de-Grâce, Lachine, and everywhere else.

One of our members, Gregory Ko, is with me today. He is a University of Ottawa student who will be attending McGill law school this fall.

We're very pleased to present Egale's views to this committee. Thanks very much for inviting us.

As you know, homosexuality was illegal in Canada until the late 1960s. Whenever the gay and lesbian community hears about a change in the country's sex laws, you'll have to excuse us, but we tend to get a little nervous.

Egale sees Bill C-22 as an unnecessary invasion into the sex lives of young Canadians. There are already sturdy laws that protect teenagers from sexual exploitation and assault. Instead of further criminalizing sexual behaviour, Canadian governments at all levels should instead focus on sex education. We should help young people by helping them make their own choices about what is comfortable for them.

Egale is opposed to raising the age of consent from 14 to 16. Whether or not we think Canadian teenagers should be having sex at age 14 or 15, the reality is that most Canadian teens of that age are indeed having sex. Some of them are having consensual sex with their same-age peers, and some are having consensual sex with adults. Egale believes very strongly that it is possible, even common, for 14- and 15-year-olds to consent to sex, even with people over the age of 20.

When young people don't consent to sex, Canada has very strong laws in place to protect them: laws against sexual assault at any age and laws against people in positions of authority who take advantage of the minors in their care. We also have strong laws against child prostitution, child pornography, and Internet luring.

We should teach young people to make decisions for themselves. We want young people to get reliable information about sex from their school guidance counsellors, local health clinics, and peer support groups. We want young people to get sex information from friends they can trust and also grown-ups they can trust. If young people feel their behaviour is criminal, we have good reason to believe they will not seek help.

Likewise, if school boards get the impression that youth sexuality is being criminalized, they'll be apprehensive about offering full sex education before students turn 16. After 16 it could be too late, because that's when many young people drop out.

We should also give discretion to the courts about the relationships that young people get involved in. We want judges and juries to focus on individual cases and make decisions about the best interests of young people in those cases. We do not want to leave it up to the government to make broad judgments about all young people in Canada and the activities they engage in.

Finally, I would like talk, as Andrea Cohen did, about anal sex. I mentioned earlier that homosexuality was illegal until the late 1960s. That's when section 159 of the Criminal Code was changed to allow consenting adults to engage in anal sex. Section 159 was not eliminated then, as it should have been. If you take a look at the Criminal Code, you'll see that it exists between the sections on bestiality and incest.

The Criminal Code makes anal sex illegal for anyone under the age of 18. That means, as Andrea pointed out, that all 16- and 17-year-olds who engage in anal sex are committing a crime, even if they do it with a 19-year-old, an 18-year-old, or even with another 16- or 17-year-old. Bill C-22 does nothing to abolish this inequality, even though section 159 of the Criminal Code has been declared unconstitutional by several different provincial courts. It is time to eliminate section 159. If you insist on passing it, Bill C-22 is the perfect opportunity to do so.

At the absolute minimum, the age of consent for anal sex should be equal to the age of consent for other forms of sexual expression. If not, Canada's anal sex laws will continue to be an act of state-sanctioned discrimination.

In conclusion, and before Gregory says a few words, let me say that the issue of young people and sexuality is indeed a very sensitive one, and it's one that should be carefully considered before any laws are passed. That's why I'm very glad that we have this opportunity today to make our presentation to this committee.

We at Egale would like to thank the justice committee for the opportunity to speak about this very important topic, so thanks for listening.

Here is Gregory Ko.

[Andrea Cohen, President of the Board of Directors, Canadian Federation for Sexual Health]

Thanks very much for this opportunity, Mr. Chair and members of the Standing Committee on Justice and Human Rights.

My name is Andrea Cohen. I'm currently president of the board of the Canadian Federation for Sexual Health, and that's my voluntary life. In my day job, I'm also the executive director of a large community health centre in Toronto, in the neighbourhood of Lawrence Heights. Every year we deal with thousands of vulnerable youth, providing both primary care and health promotion programs.

With me is Linda Capperauld, who's the executive director of the Canadian Federation for Sexual Health, and our head office is here in Ottawa.

The Canadian Federation for Sexual Health is a national, member-driven charitable organization focusing exclusively on sexual and reproductive health and rights. We've been around for over 40 years, working both in Canada and internationally. We represent a national network of 26 affiliate members across Canada and have great experience and success working with youth and parents in both education and health care delivery. Our federation includes the Canadian Youth for Choice, which is a rapidly growing national network of young people who are educating and advocating for the rights of youth regarding their own sexual health.

We support the intent of Bill C-22, which is to protect young people from sexual exploitation. However, this bill as it currently stands focuses only on the law enforcement aspects of protection. Law enforcement in and of itself does not protect youth; it only allows for prosecution once youth have already been exploited. If we are serious about protecting youth, then we must make sure they have the skills, education, and health services needed for them to make informed choices, to negotiate their sexual relationships, and to prevent abuses of power. Moreover, we must think about the possible unintended consequences of this bill.

We have three major concerns that we'd like to share with you today, but we've conveniently added three recommendations to go along with them.

First, young people do not seek out the information and sexual health services they need if they fear a lack of confidentiality. We know this from our long experience and from the research. We also know from experience that when a young person is able to build a trusting relationship with a health care provider or other professional, it creates a positive environment for counselling on decision-making, choice, and empowerment.

The perception or reality that a young person or his or her partner would be reported to authorities and prosecuted for consensual sexual activity outside of the five-year limit will result in sexually active youth not seeking or getting the health services they need. There are potential consequences to this. The prevention of unintended pregnancies, the prevention and treatment of sexually transmitted infections, and the prevention of HIV/AIDS will be seriously compromised.

Second, the increased age of consent could be used as justification for denying young people the sexual health education and services they need. Unfortunately we know that once a law is passed there is often little control over how it is used or interpreted. Educators and health professionals may be reluctant to enter into conversations about sexuality with young people under the proposed new age of consent due to uncertainty about their legal obligations, their own personal viewpoints, and parental and other pressures. This has happened in other jurisdictions, such as the United Kingdom.

Both our experience and best practice research show that sexual health education that begins early, is age appropriate, and includes skills building as well as factual information is effective in helping young people to negotiate relationships, to delay first sexual activity, and to practise safer sex when they become sexually active. This education is essential for youth to learn ways in which to protect themselves from potentially exploitive situations. As surprising as it may sound, even today sexual health education is inconsistent and at times non-existent for many youth in Canada.

Third, the Criminal Code of Canada includes a clause that sets the age of consent for anal sex at 18 years, which is higher than for any other type of sexual activity. There is no logical or medical reason to treat one type of sexual activity differently from others. Both the Ontario and Quebec courts of appeal have already found this distinction to be unconstitutional.

While this clause exists, it means that, for example, two 16-year-olds who engage in consensual anal sex could be prosecuted, regardless of the intent of Bill C-22 not to criminalize consensual teenage activity.

The Canadian Federation for Sexual Health offers the following three recommendations in light of those concerns.

Amend Bill C-22 and all relevant legislation to ensure that information provided by a young person when accessing sexual health education information and medical services is considered to be privileged unless there is evidence of exploitation. This would mean that if a young person disclosed to a health care provider a consensual relationship with a person outside of the five-year exemption, this would be kept confidential and not be reported unless there was evidence of exploitation.

The second recommendation is to continue to provide strong federal government support to the Joint Consortium for School Health, which is a working group of provincial and federal ministries working together to try to increase the ability of the school system to teach topics of health education, including sexual health education. This important national initiative will help ensure that age-appropriate, accurate, and unbiased sexual health education is provided to children and youth in schools across Canada.

The third recommendation is to remove section 159 from the Criminal Code of Canada. This section sets the age of consent for anal sex at 18 years, which is higher than any other type of sexual activity. This will make the age of consent uniform for all sexual practices and orientations.

We thank you very much for the opportunity to present to the committee today.

[Faytene Kryskow, Director, Motivated Young People for a Strong Canada]

Good morning, members, and thank you for your service to the nation on this extremely important committee. Your recommendations regarding Bill C-22 will impact future generations in Canada and in other nations that are looking to Canada for leadership on protecting children from sexual predators.

Last year, on the same day as a similar bill was voted on in Parliament, Bill C-331, Liberal member Pablo Rodriguez stated to the House that “a political party has a duty to listen and pay attention to what [youth] has to say.... They are in the best position to identify the problems and challenges facing them. ...when we in this House talk about building the Canada of tomorrow, we are talking about their future, and we ought to listen to them.”

With this wisdom in mind, I would like to let you know exactly who I represent. The recently incorporated MY Canada association already has a membership of multiple thousands of young people, primarily under the age of 30, with a few moms and dads in the mix. We served in several dozen campaigns in the last election, have mobilized hundreds of young people to meet their MPs, are observant CPAC junkies, and are committed to supporting, in practical ways, those members who will lay aside party politics to do good and sensible government. We span every province and territory and both nations in Canada. We are non-partisan, and yes, we vote.

Last summer, more than 12,000 Canadians—youths, young adults, and their parents and guardians—gathered on site at Parliament Hill and via webcast for a mass event called The Cry. We are told by political analysts that every person represents a thousand. If this is true, it's amazing to think that our first national gathering could very well represent 12 million Canadians.

Now that you know who we are, we want to point out that good and responsible government takes into account both the wishes and the well-being of its citizens. On this note, let me present to you feedback that comes both from our network and from average Canadian citizens, not special interest groups that are loaded with aggressive agendas.

In the last eight days, we posted a survey on our site regarding Bill C-22. We also canvassed the University of Ottawa and Carleton University to get a broader youth perspective than just that of our own network. In just eight days, we've had 931 surveys returned, with 94% saying they do not believe a 14-year-old has the maturity to choose an appropriate sexual partner; 92% saying they do not believe a 14-year-old would have the confidence to resist an adult who is pressuring or manipulating them to have sex against their will; and 90% saying they support Bill C-22 and believe the age of consent should be raised.

Some respondents who marked “No” on this last question did so because they believe it should be even higher. For example, they said they don't think it should be raised to 16 because they think it should be even higher, at 18. In some cases, it was even higher than that.

Many Canadians we talked to were both shocked and disturbed—never mind surprised—that the current age of consent is only 14. Consistently, we heard a plea from youths, who were in essence saying, please protect us.

Here are a few quotes from the youth comment section of our survey:

I am 15 years old going to 16 soon. I am older than everyone in my grade so we are just past the age of 14. I know for a fact that most of my grade is not mature enough to make a decision as big as this. I know I'm not mature even though I am told that I am very mature for my age. I don't want to see people getting hurt just because they can have sex—