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.

[Rob Moore, Conservative, Fundy Royal, NB]

What Bill C-22 says is if you're under 16, if you're 14 or 15 years old, someone who's over five years older cannot have a sexual relationship with you. I guess from our perspective, the idea of creating an exemption because someone happened to get pregnant doesn't make a lot of sense.

Why should we treat a couple differently if there's a 27-year-old male and 15-year-old female, for example, and in one case the male is lucky enough that she is now pregnant, so he is exempted? To put those kinds of defences in I think would be too broad.

The practical reality is this law meshes very well with the provincial laws when it comes to marriage, in many cases. Also, with immigration, it's 100% consistent on the age of 16. In those situations where someone is under that age, in most cases the female would have to be pregnant, which means the offence has already taken place.

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

Yes, we're talking about the same scenario. On December 31, 2007, the conjugal relationship begins between a 15-year-old girl and a 21-year-old male. We can say 26-year-old, whatever; it's a male who's more than five years older in age. On January 1, 2008, Bill C-22, as amended by Mr. Comartin, comes into force. That amendment that Mr. Comartin is proposing would result in this relationship not being deemed criminal.

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

Sure. Thank you.

I have another question. If Mr. Comartin's amendments were to be adopted by this committee, and then Bill C-22 become law, as amended by Mr. Comartin, if my understanding is correct, the 21-year-old would not be in a criminal situation if he were able to establish that the conjugal relationship began prior to the day the law came into force but was less than one year. Is that correct?

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

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 C-22, 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?

[Carole Morency]

Under the Immigration and Refugee Protection Act, Canada does not recognize a marriage or a common-law relationship of a foreign national if he or she is under the age of 16. That's what the law is, federally, and that's what Bill C-22 would be consistent with. It wouldn't necessarily prevent them from having access to Canada through the refugee process, but they wouldn't recognize the marriage or a common-law relationship for those purposes.

[Réal Ménard, Bloc, Hochelaga, QC]

With your indulgence, Mr. Comartin, I would like to check that.

Mrs. Morency, is Mr. Comartin's scenario exact? If the Immigration and Refugee Board were to grant permanent residency for humanitarian reasons to a person after Bill C-22 comes into force, for example in December 2008, and if that person was in a relationship that did not correspond to our legal rule relating to age, would that person be committing a criminal act, even though the marriage might have been celebrated in another country or the relationship might have been established before the person arrived in Canada?

[Réal Ménard, Bloc, Hochelaga, QC]

You want us to pass Bill C-22 with its present clauses but you want us to authorize a criminal act. Why would someone start a common-law relationship and start having sexual relations knowing that it is a criminal act?

I would also like you to explain your proposal relating to refugees, which I do not understand either.

[Some members]

Yes.

[Carole Morency]

If the relationship existed when Bill C-22 comes into force, those persons in relationships with people more than five years older than them will have a line of defense.

But if it's a marriage, and common law, if a couple was together for one year, or there was a child, and it existed and it met that definition when Bill C-22 comes into force, again, an exception will protect them.

In a short period of time, the 14-year-old or 15-year-old will become 16 years old. So the exception will cover them off to that point.

If the relationship forms after Bill C-22 comes into force, or if it doesn't meet the common-law definition--so they've lived together for less than a year and there's no child--it will be criminalized under Bill C-22. But on the point about whether there could be a permanent exception just to marriages and not also to common-law relationships, that would raise charter considerations.

[Réal Ménard, Bloc, Hochelaga, QC]

I want to make sure that I understand because we will have to vote afterwards. We will have to dispose of these Bill before the end of today's meeting.

My party has some concerns about your amendment. I took note of the 316 figure. Some 15-year-olds are in a relationship with persons who are more than five years older than them. If the Bill is passed, their relationship could be criminalized.

Mrs. Morency, will these people get an exemption under a grandfathering clause? Is Mr. Comartin right to say that, if the Bill is passed, some 15-year-olds who are married to persons more than five years older than them and who not caught by the official statistics, for various reasons, could see their relationships criminalized? How do you interpret the scope of this amendment? Would you recommend that we accept the amendment? There are two interpretations and two series of figures.

[Carole Morency]

Two years ago, in the context of proceedings under a former bill, Bill C-2, 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. Bill C-22 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 Bill C-22 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.

[Carole Morency, Acting General Counsel, Department of Justice]

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 C-22, 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 C-22 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 C-22, 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 C-22 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 C-22 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 C-22 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 C-22 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 C-2, 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.

[The Chair, Conservative, Art Hanger]

I call the Standing Committee on Justice and Human Rights to order pursuant to our order of reference of Monday, October 30, 2006, Bill C-22, an act to amend the Criminal Code and to make consequential amendments to the Criminal Records Act. Today, Thursday, April 19, 2007, we continue our examination of Bill C-22.

We again have with us Carole Morency, acting general counsel, from the Department of Justice.

Mr. Comartin, you have a submission, I understand. Perhaps you could present that.

[The Chair, Conservative, Art Hanger]

That's correct. Of course, Bill C-22 amends the Criminal Code and the Criminal Records Act. This amendment, NDP-5, proposes to amend the Canada Evidence Act and is therefore inadmissible.

[Rick Dykstra, Conservative, St. Catharines, ON]

Those relationships can continue to form, but under Bill C-22 those relationships are not going to be legal.