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.

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

I move the amendment.

The members of the committee heard witnesses discuss several decisions handed down by provincial appeal courts stipulating that section 159 was invalid. This section states that persons under 18 years of age who engage in anal sex are committing a criminal act. Certain witnesses recommended that this section be repealed in its entirety.

As the objective of Bill C-22 is to change the age of consent for all sexual activities, repealing section 159 would have the effect of harmonizing the age of consent for all sexual activities of whatever nature.

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order on Tuesday, April 17, 2007. Pursuant to the order of reference of Monday, October 30, 2006, Bill C-22, an act to amend the Criminal Code on age of protection and to make consequential amendments to the Criminal Records Act, is before the committee. We are now into clause-by-clause consideration.

We have, from the Department of Justice, Ms. Carole Morency, acting general counsel, and of course the parliamentary secretary, Mr. Rob Moore.

Just before we go into clause-by-clause, I know there have been a number of groups and individuals who wanted to appear before the committee in reference to Bill C-22: CASE, Beyond Borders, REAL Women of Canada, Ms. Dawn Stefanowicz, other concerned citizens--and I know there were other submissions as well. Unfortunately, we couldn't get to all of them. I know we set a timetable, but I would like to thank those individuals for submitting briefs in spite of the fact that they couldn't come to testify personally.

To begin with, on the bill itself, I trust everyone has the information before them, including copies of the amendments.

First we should deal with NDP-1. Mr. Comartin.

[Kim Pate]

Just very briefly, I would support everything Ms. Jennings said there. Rather than repeat it, I'll just say we support it.

In the alternative, our first position would be that rather than throwing another law at this issue, targeting the real concerns and implementing what laws do exist would be our first priority.

Yes, repealing section 159 is an issue. In the alternative, if you don't agree and you do decide to proceed with some version of Bill C-22, then to all of what you said I would say, yes, incorporate in terms of amendments.

[Jason Gratl]

One of the great difficulties of legislating in the area of sexual age of consent is that the law itself is not very well understood.

Mr. Quist from the family institute raised the percentage that 90% of people are in support of this bill. I think that may well be because the existing provisions are so poorly understood. The general public doesn't understand that there are laws against sexual exploitation of children, doesn't understand that there are laws preventing persons in positions of trust, power, and authority from having sexual contact with minors. A great deal of the public concern over sexual exploitation could be dealt with by educating the public on the existing ages of consent. It's a comprehensive, complex scheme.

The single unified message that's going to go out with Bill C-22 is not the close-in-age exemption; rather, it's that the age of consent is being increased from 14 to 16. And that will send a message about children's sexual autonomy that is wholly undesirable; it will signal a bit of a cultural shift towards moralizing, towards a kind of fundamentalist approach towards sexuality that's highly undesirable.

So it's that general tenor, not the specifics of the regime, that really will be manifest at the cultural level.

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

The other point I have is that it is a real concern that young people, even today, will not share with health care providers, with people who have the information and can provide them with good, healthy information about sexual relationships and sexual health, etc. It may in fact become even more of a problem.

Given that it's already a problem, I don't think Bill C-22 is that substantive on that issue. I think the problem is that as a government, federally and otherwise, we haven't made the measures and the tools available in order to do the kind of education and provide the kind of information to young people so that, one, they know what the law is; and two, they're comfortable that they can go to and confide in their health care providers. I'd like your comments on that.

Thank you.

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

Thank you, Chair.

Thank you very much for your presentations. I have a couple of questions that follow on suggestions or recommendations that were made by witnesses earlier this morning. Before I ask them, I'd simply like to address the issue of the lack of consultation with teenagers.

Normally a government that is thinking about bringing about a substantive change to a particular legal framework or law conducts what's called pre-consultations. It actually informs the public that it's thinking of changing a particular law, and it asks for people and organizations to write in, to e-mail, and to send in their views, and there's a deadline. Once everything is received, it's all collated, and the basic views that are received are summarized.

The government then organizes panel discussions, round tables, or whatever, with a representative number of stakeholder groups. Only then does the government actually move forward with actual legislation, which is then tabled in the House, etc.

I'm not aware that this government did that. I am aware that the complaint we hear regularly on other bills is that there was no pre-consultation and the traditional process was not respected. That is an issue you may wish to take up directly with this government.

My questions follow on the recommendations of previous witnesses and are on the issue of the discriminatory section, section 159, which criminalizes anal intercourse if you're under the age of 18. It's criminal right now, even with the age of consent at 14. It doesn't change anything for anal intercourse, regardless of what the age of consent is; if you're under 18, it's a criminal act.

First of all, that has been judged to be unconstitutional by a number of provincial courts, and at least by the Court of Appeal for Ontario, but it hasn't gone all the way to the Supreme Court of Canada. It should be null and void. The government should in fact repeal the whole section, and it had an opportunity to do so with Bill C-22. Had the government done the pre-consultation, perhaps they might have heard from sufficient witnesses and legal experts that they would have included it.

Under our rules here in Parliament, because that section isn't touched by Bill C-22, it means that if we attempt to bring an amendment that would repeal section 159, it would be deemed out of order. Some witnesses have suggested that we should in fact amend section 150.1 of the Criminal Code, which is dealt with in Bill C-22, by adding section 159. I'd like to know if you have any comment on that. That would be a stop-gap remedy until the government, in its wisdom, finally repeals section 159 in its entirety.

There's a second point that I would like your comments on. There has also been a suggestion that rather than having a hard and fast law saying that if the difference in age is five years or more it's automatically deemed a sexually exploitive relationship and there is no defence, it should be presumed to be a sexually exploitative relationship, in which case it would allow for that to be rebutted. You would then have the possibility of someone who is 22 years old with someone who is 16 years old, and they would be able to rebut that. That's my second question.

If I have time—

[Professor Daphne Gilbert, Faculty of Law, Common Law Section, University of Ottawa, As an Individual]

Thank you for the opportunity to speak to the committee.

I'm on faculty at the law school at the University of Ottawa, where I teach, research, and write in both constitutional and criminal law.

I'm going to take a slightly different approach to my submissions from some of the others today. I'd like to raise two matters with the committee. The first is a constitutional issue that I see in the amendment, and the second are some criminal law policy questions that Bill C-22 provokes.

To begin with the constitutional law question, I can offer the committee a very brief overview of how this amendment comes into conflict with provincial powers over the solemnization of marriage. It may be that this conflict is ultimately remedied by the judicial doctrine of paramountcy, but I think the committee should be aware of the issues raised by a change to the age of consent to sexual activity. It's fairly settled law, I think, that it is within provincial constitutional competence over solemnization of marriage to set the minimum age for marriage. There are varying regimes in the different provinces and territories, but there are two problems that this amendment immediately creates. First, in the Yukon, Northwest Territories, and Nunavut the minimum age for marriage is currently set at 15, with parental consent. This raises an obvious conflict with the federal Criminal Code provision that forbids sexual activity under the age of 16 if there's more than a five-year gap.

The second problem that immediately arises is in provinces where the minimum age for marriage is 16 but where there are processes for obtaining permission at a younger age, either through the courts or through the officiating minister. Although I have some questions and concerns about the criminal law policy implications of the amendment, which I will raise in a moment, it is likely within the federal government's criminal law power to make this change.

Given, then, that both schemes are constitutionally permissible—provincial age limits under solemnization of marriage competence and federal criminal law age limits for lawful sexual activity—the legal question becomes how to resolve the constitutional conflict.

The judicial doctrine of paramountcy is the usual route for constitutional conflicts, and it provides that in cases of conflict between federal and provincial laws, the federal laws are paramount and the provincial law is inoperative to the extent of the conflict. The Supreme Court of Canada has tended to prefer a very narrow approach to paramountcy, leaving a great deal of room for the concurrent operation of federal and provincial laws, except on the point of express or direct conflict. Where there is, as the court describes, an impossibility of dual compliance, the federal law prevails.

It may be, as famously declared, that governments should stay out of the bedrooms of the nation, and it may be that lawmakers can envision a platonic marriage, but it seems evident that constitutionally speaking, it's impossible to reconcile a lawful marriage between a 15-year-old and a 21-year-old and a Criminal Code provision that makes sexual activity between those partners unlawful. From a constitutional point of view, therefore, the provinces are faced with having to raise minimum age limits to 16 if there's an age gap of more than five years between the parties.

I've read and heard the policy justifications for the proposed amendment, and if it's to be enacted, I certainly support the close-in-age exemption. I think it raises constitutional and social problems in the marriage context. The reasons for permitting teenage marriage are myriad: cultural, religious, and social. The reasons for preferring provincial competence over the solemnization of marriage must at least in part be a response to the more localized or community norms on marriage across the country. I worry that you are in particular creating problems in our three territories, the jurisdictions with presumably justifiable expressed age limits of 15 for marriage, with parental consent.

There are always bright lines to be drawn when age limits are involved, and generalized judgments about maturity and readiness. However, I think that when it comes to marriage involving parental consent or judicial order or minister approval, as the case may be, the Criminal Code prohibition on sexual activity between, for example, a 15-year-old and 21-year-old could be an absolute bar that is problematic and regrettable in those rare instances when all parties believe a marriage is within the best interests of the younger party. In short, on this point, I think the committee needs to consider specifically in the marriage context the defencibility around laws permitting a 15-year-old and a 20-year-old to marry and those that would forbid it if the older partner is 21.

This brings me to my final point on the constitutional question, and that is whether, given the constitutional conflict, a defencible exception could be crafted for sexual activity within marriage. I have two brief but very strong arguments against a marriage exception. First, it is my view that privileging otherwise unlawful sexual activity within marriage is no longer legally permitted, given our expanded legal and social recognition of common-law relationships, but more importantly, given that under no circumstances would we permit sexual violence in a marriage context. If sexual activity is deemed unlawful because a party is legally incapable of giving consent, this is an offence akin to sexual violence offences, and I would not think it constitutionally permissible to create marriage exceptions in this area.

Second, I think it's extremely problematic to create marriage exceptions to otherwise unlawful sexual activity where the marriage requires parental, court-ordered, or a minister's permission. This places the regulation of teenage marital sexuality directly in the hands of others and places parents, courts, and ministers in the untenable situation of offering consent for a child to engage in otherwise illegal sexual activity.

To conclude on the constitutional issue, it's my view that the committee needs to consider the constitutional question that arises by virtue of the amendment and take positive steps to ascertain whether it's appropriate for the provinces to either reconsider age limits to marriage or deal with potentially inoperative age limits in certain circumstances.

This brings me to my second concern with the legislation, and that's the broader criminal law policy questions at play. The amendment deals with social concerns around teenage sexual relations by creating a new category of criminals. While the goal of targeting sexual predators is one that no one would disagree with, I am unconvinced that from a criminal law policy perspective this amendment is the best way or even a good way to get at sexually predatory behaviour.

Given the social norms around sexual relationships, and what we can take judicial and political notice of, even without all the statistics and support, it's evident that this law primarily targets male sexual predators. In most sexual relationships, and certainly in most where a teenager is involved, the older partner, the unlawful partner, will be a man. This then becomes a Criminal Code amendment that primarily involves regulating the sexual lives of teenage girls, and while framed as gender neutral, there are obvious gender implications.

We already have many under-enforced provisions in the Criminal Code around sexual violence, sexual exploitation, and incest, as well as laws around pornography and prostitution. These laws could combine to offer powerful protection to teenage girls against sexual predators without infringing on their sexual autonomy or sexual health and with a far stronger social message around the kinds of behaviours we condemn.

We should strongly enforce laws around sexual violence. We should make sure we require a legal culture that sends a message to young people that they control their sexual autonomy, that they, and especially teenage girls, have the right to say no to sexual activity. We should condemn the patriarchy that encourages predatory behaviour or encourages men to believe they have to relate primarily in a sexual way to women. I think this is best done through the laws around sexual violence or abuses of trust, authority, and power. Creating a new category of criminals does nothing to change the culture and only drives teenage sexual activity further underground.

Thank you for the opportunity to speak to you, and I welcome any questions you have about either issue.

[Dave Quist, Executive Director, Institute of Marriage and Family Canada]

Thank you.

Mr. Chairman, members of Parliament, on behalf of the Institute of Marriage and Family Canada, I would like to thank you for the opportunity to present to you our considerations in support of Bill C-22, an act to amend the Criminal Code on age of sexual consent

The Institute of Marriage and Family Canada is a research think tank based here in Ottawa. We are committed to bringing together the latest research on issues that face Canadian families and placing it in the hands of decision-makers such as you.

I offer my apologies for not having this presentation available in both official languages. Unfortunately, I received notice only on Tuesday that we would be appearing, and time restraints have necessitated that it be available only in English today. The clerk has copies, and they will distributed in the days ahead.

Bill C-22 is a bill that we are pleased to see being debated and poised for final voting in the House of Commons in the weeks ahead. As you know even better than I do, the premise of this bill has been under consideration for many years and advocated by family-friendly organizations for even longer.

In considering the text of this bill, it is clear to me that this bill will give law enforcement agencies and the courts the necessary tools to actively combat the sexual predators, those who would harm our youth. From my reading of the bill, this is not a sex bill, and rather is a child protection bill, strengthening protection of youth from adult sexual predators. It is clear from the legislation that the non-exploitive youth-to-youth sexual relationships are not under the microscope, but rather it is intended to give all levels of law enforcement the teeth to fight sexual exploitation.

Canadians have clearly stated that this change is wanted and widely supported. In May 2002 we commissioned a poll with Pollara, which, as you will know, is an international polling company. Through the survey, a total of 1,659 interviews were conducted with Canadians 18 years of age and older, in every region of Canada, and with roughly equal numbers of men and women. Through the survey three questions were asked on child pornography and, more importantly, the age of sexual consent.

The first question asked was the following:

Recently, the B.C. Supreme Court acquitted John Robin Sharpe of possessing and distributing child pornography on the grounds that his fictional stories depicting scenes of violence and sex involving adults with children have some artistic merit and could not be classified as child pornography.

Of the respondents, 86% either disagreed or strongly disagreed with this ruling.

The second question was the following:

Do you think strengthening child pornography legislation should be a high priority, a moderate priority, a low priority or not a priority at all for the federal government?

An astounding 91% of respondents stated that it was either a high or a moderate priority, and 76% of those said that it was a high priority.

The third question is most germane to our debate today:

There has been some debate lately about the age of sexual consent in Canada. Currently the age of sexual consent for most sexual activities is 14 years of age. Do you think that the federal government should raise the current age of sexual consent from 14 to 16 years of age?

An overwhelming 80% of respondents felt that it should be 16 years or higher.

This poll will be included with my information and dispersed by the clerk as well.

As you can see from these dramatic results, Bill C-22 is clearly in line with the results of our Pollara survey. Based on the media work—such as radio and television talk shows--that I have done over the past year, it is my belief that these results remain accurate today as well.

There have been arguments that there is no need to change the law in this matter and that it will unnecessarily penalize sexually active teens. I fail to see the logic of this argument. First of all, the bill allows for most inter-teen sexual activity, within a set age range.

Second, it is clear from reading this bill that it is not written to promote sex or sexual abstinence. Rather, it is intended to protect our youth from sexual predators.

Third, and of particular importance, according to Dr. Eleanor Maticka-Tyndale of the University of Windsor in her paper, “Sexual Health and Canadian Youth: How Do We Measure Up?”, taken from The Canadian Journal of Human Sexuality, Spring/Summer 2001:

Half of young people do not initiate sexual intercourse until after their 17th birthday—approximately 3/4 do not initiate until their 16th birthday or later.

Clearly, moving the age of sexual consent to a minimum of 16 years of age is in keeping with this peer-reviewed study.

Information from the Henry J. Kaiser Family Foundation of California mirrors Dr. Maticka-Tyndale's research. In their October 2003 report, “Virginity and the First Time,” their researchers found that

Most adolescents surveyed agree that sexual activity is most appropriate among people aged 18 and older, or those who are married or in committed relationships.

In June 2006 I took part in a talk radio show on the New 940 out of Montreal. The topic was raising the age of sexual consent. Prior to my segment, three teenaged girls were discussing this issue with the host. I found it interesting that they were unanimous in their support of raising the age of consent to 16. All three had been sexually active for several years, and all three felt that the biggest issue for them, in retrospect, was that they were not emotionally mature enough to deal with all that sexual activity brought with it.

Former justice minister Anne McLellan was quoted in the February 5, 2001 National Post as saying:

And people quite rightly believe kids are different—we all do. Young people simply lack, in many cases, the capacity to think and reason and understand the consequences and implications of their acts in the same way that adults do.

Mr. Chair, simply put, it's doubtful that the majority of teens under 16 fully understand and are fully prepared emotionally for sex. In light of this, society has an obligation to protect our children and youth from predators and from those who would take advantage of their youth and emotional immaturity. In the vast majority of cases, youth of 14 years of age are most often in a position of trust and dependency when dealing with older teens and adults.

So we turn to the implications of this bill and those who are targets. I'd like to bring some additional research to your attention as well. According to research on the website for Enough is Enough, approximately 89% of sexual solicitations are made either in chat rooms or through instant messaging, and one in five youth, ages 10 to 17 years, has been sexually solicited online. This was done by the Journal of the American Medical Association, 2001.

It is estimated that over 25% of youth participate in real-time chat, and even more use instant messaging. Internet exploitation is a very real problem today.

Furthermore, the American Medical Association reported in 2001 that “Solicited youth reported high levels of distress after solicitation incidents. Risk of distress was more common among the younger youth, those who received aggressive solicitations”—in other words, the solicitor attempted or made off-line contact—“and those who were solicited on a computer away from their home.”

A research project based in the United States examined 129 cases where predators targeted youth under 18 through the Internet. The study found that an overwhelming 76% of victims were between 13 and 15 years of age. Furthermore, female victims accounted for 75% of the targeted youth. Sadly, over half the victims described themselves as in love or as having strong feelings for their abuser. The study found that most of the predators were upfront with their young victims about being older adults looking for sex with teens. Predators are not hiding in the shadows but are openly manipulating young teens into consensual sex.

I note that in the federal budget that was just passed, the finance minister included a government investment of $6 million per year to “combat sexual exploitation and trafficking”. Our children are our greatest resource, and this measure reflects a sad reality within our society. For many of us, Bill C-22 will go a long way to assist this plan. According to Statistics Canada, the proliferation of sexual exploitation is highest among girls 11 through 19, peaking at 13 years of age, and among boys three to 14 years old.

Statistics Canada states that:

Assault rates against children and youth generally increased between 1999 and 2002, but have subsequently fallen in 2003 for each age group.

I don't have statistics beyond 2003, although I do note that those assault rates are still double what they were 20 years ago.

Mr. Chair, in conclusion, let me first thank all committee members for the opportunity to make this presentation to you. The Institute of Marriage and Family supports the premise of Bill C-22, an act to amend the Criminal Code on the age of sexual consent. As legislators, you can do nothing better than protecting our youth and giving the legal system the tools to fight against the sexual exploitation of them.

I look forward to your questions and the discussion on this important issue.

Thank you.

[Andrew Brett]

As the only youth-led committee making a presentation to the justice committee on this bill, we urge you to listen to our concerns. Bill C-22 is dangerous for youth workers, health professionals, educators, and to young people themselves. We are firmly committed to defeating any move to increase the age of consent in Canada.

[Andrew Brett]

Our third point is that an increase to the age of consent would result in social workers and teachers being reluctant to provide adequate sexual health education and information to young people.

The Ontario Court of Appeal noted in a 1995 ruling how age of consent laws, which purport to protect young people, can actually have the opposite effect by preventing them from accessing information. I'll quote from the ruling:

The health education they should be receiving to protect them from avoidable harm may be curtailed, since it may be interpreted as counselling young people about a form of sexual conduct the law prohibits them from participating in. Hence, the Criminal Code provision ostensibly crafted to prevent adolescents from harm may itself, by inhibiting education about health risks associated with that behaviour, contribute to the harm it seeks to reduce.

Through federal and provincial laws and professional codes of regulatory bodies, mandatory reporting of suspected child abuse is widespread across Canada. In Ontario the Child and Family Services Act mandates reporting if the young person is under the age of 16. This applies to teachers, social workers, youth workers, doctors, nurses, and many others.

By criminalizing consensual sexual activity involving 14- and 15-year-olds, previously legal activity will now be considered abuse and the prospect of mandatory disclosure may prevent professionals from assisting young people. As a former peer counsellor for youth myself, I was trained to warn young people about the possibility of incriminating themselves or their partners before they spoke about their sexual activities. Increasing the age of consent would mean that more young people would have to be warned about disclosure and more of them would be reluctant to speak with professionals.

Our final point is that lesbian, gay, bisexual, trans-identified, and queer youth will be disproportionately affected by this bill compared to their heterosexual counterparts. The choices of queer youth already face additional scrutiny when it comes to their sexual identity and activity.

In the Marc Hall case, when a 17-year-old high school student was denied a request to bring his 21-year-old male date to his prom, the school board chair justified this homophobic discrimination by claiming that Marc's partner was too old to bring anyway. In reality, many heterosexual students bring dates of similarly disparate ages to their school proms and rarely are these decisions ever questioned.

When youth are queer it is often assumed their choices are uninformed, just a phase, or that they are being recruited and exploited. In addition, given the widespread homophobia that exists among teachers, parents, and society in general, we have very good reason to believe that Bill C-22 will be disproportionately used to regulate the sexual lives of queer youth.

It is not uncommon for queer youth to seek out relationships with older partners, as they can provide much-needed recognition and support in a context where many of their peers are still closeted due to prevailing homophobia in schools and families. Such age-discrepant relationships are not always exploitative or harmful. In fact, they can be beneficial, and this recognition is an important one in the lives of queer youth. This proposed law would further isolate them and expose them to danger.

Gay and bisexual male youth are already explicitly targeted in current age-of-consent legislation through section 159 of the Criminal Code, which sets a discriminatory age of consent for anal intercourse. It is important to note that when this section was struck down by the Ontario Court of Appeal in May 1995 the majority opinion held that the discrimination was unconstitutional, not based on sexual orientation but on age. This sets a precedent that leads us to believe that Bill C-22 can be struck down as a violation of section 15 of the Charter of Rights and Freedoms on the basis that it discriminates against young people without demonstrable justification.

[Nicholas Dodds]

After reading the news reports and minutes from previous witnesses at this hearing, it is frustrating to hear the type of evidence being presented to bolster the case for Bill C-22.

One newspaper reports that a witness used the sexual abuse of a two-year-old as justification for this bill, as if the law was somehow unclear on this and needed to be strengthened. The supporters of this bill claim that the age of consent must be increased in order to combat child prostitution and child pornography.

The reality is that both of these activities are already illegal, not just for 14- and 15-year-olds but for anyone under the age of 18. The laws are absolutely clear: sexual abuse and exploitation are illegal. If these laws aren't being enforced properly, the solution is not to make them more illegal. Redundant criminalization will not suddenly create an environment where young people are empowered to recognize exploitation and come forward about abuse. More work needs to be done to educate and empower youth, and Bill C-22 will be counterproductive to these aims, for reasons that will be outlined later.

Another claim is that Canada is a haven for pedophiles who want to take advantage of our supposedly low age of consent. In reality, when taking into account the 2005 law that expanded the definition of exploitation, which I believe was Bill C-2 before being passed into law, the Department of Justice says that “Canada's criminal law framework of protection against the sexual exploitation and abuse of children and youth is amongst the most comprehensive anywhere.”

Our second point is that increasing the age of consent will actually put young people in more danger by inhibiting their access to sexual health information and services. In the United Kingdom, where the age of consent is currently 16, a survey of young women found that those under the age of consent were six times more likely to say that “fear of being too young” prevented them from seeking help.

In fact, the Department of Justice itself stated just two years ago that the age of consent should not be increased to 16 because “educating youth to make informed choices that are right for them is better addressed through parental guidance and sexual health education than by using the Criminal Code to criminalize youth for engaging in such activity”.

[Andrew Brett]

As young people, we stand unequivocally opposed to Bill C-22 on many grounds, which we will outline in four main points.

The first one is that the motivation for this bill is based out of illogical fear and hysteria about cases that are either already illegal or exaggerated.

Number two, increasing the age of consent would result in young people not seeking out vital information or services related to sexual health.

Number three, an increase in the age of consent would result in social workers and teachers being reluctant to provide adequate sexual health information to young people.

And number four, this bill will have a—

[Nicholas Dodds]

The Age of Consent Committee is a coalition of youth and youth advocates who came together in early 2006 out of concern for the dangerous effects of Bill C-22, which proposes to raise the basic age of consent in Canada.

Our members consist of students, social workers, sexual health workers, youth workers, and most importantly, young people themselves.

Over the past few days you've heard many arguments on both sides of this bill, and while we agree with many of the groups that have presented, there is a notable lack of input from young people themselves. We are here today in an attempt to bring youth concerns with this bill to the table.

[Jason Gratl, President, B.C. Civil Liberties Association]

My name is Jason Gratl. I'm the volunteer president of the British Columbia Civil Liberties Association. My colleague is Christina Godlewska. She's the articled student at the B.C. Civil Liberties Association.

We'd like to begin by thanking the members of the committee for the opportunity to make representations, however futile it might seem at this point politically. Still, we value the opportunity to put forward some of our concerns and considerations with regard to Bill C-22.

I'll begin with a general comment expressing our concern that Bill C-22 represents a fundamental shift of policy and attitude toward sexuality. In 1992, the Supreme Court of Canada, in the Butler decision dealing with the definition of obscenity, signalled a fundamental shift from the legislation of morality to the legislation of harm. From that point forward, the legislature and the courts were to look for specific types of harm, not necessarily scientifically measurable types of harm, but analytically discoverable harm, such as attitudinal harm—changes in people's attitudes toward each other that are fundamentally anti-social, psychological harm to individuals.

The idea was to rationally connect appreciable types of harm to the type of legislative endeavour underway. To our mind, that commitment to legislating against harm rather than legislating morality is endangered or imperilled by the approach this committee currently seems to be taking.

The existing protections for young people are adequate, in our submission. The sexual predators who exist in the world need to be taken account of, and much has already been done to ensure that those sexual predators are controlled, punished, deterred, and so forth, by the existing criminal law. The committee is well familiar with the crime of exploitation, as well as the restraints placed on persons in positions of trust, power, and authority to refrain from sexual contact with minors. Those go a long way to ensuring that young people are protected.

What we haven't heard before this committee, to my knowledge, is evidence that there is a rampant social problem in relation to a differential age. It's not as though there are a lot of relationships that involve older people and minors. Our concern is that in the absence of some evidence of harm, the rush on the part of the current government to enact Bill C-22 is an unconsidered response to a moral objection, rather than a legislative response to harms that have been shown to exist.

On the change in age and the five-year close-in-age exemption, empirically speaking there's a world of difference between a 12- or 13-year-old child and a 14- or 15-year-old child. Fourteen- and fifteen-year-old children are much more easily mistaken for adults, especially in a festive context—house parties, clubs, and so forth—where there is some concern that people whose proximity in age is greater than five years might mingle. In our view, even if the age is raised to 16, some of those concerns could be answered by a due-diligence defence. That is to say, if an accused person took reasonable steps to uncover the age of the person with whom they intended to have sexual contact, if there's any doubt, that ought to be an adequate defence in law to this offence.

We are talking about drastic consequences to individuals who are convicted of sexual offences—not only potential penal consequences, but inclusion on sexual offender databases and registries. These are consequences that ultimately change a person's life from there on in, making that person subject to extra monitoring, extra prescription, and so forth.

The notion that a person should suffer these consequences, despite having taken steps to discover the age of the person with whom he or she intends to have sexual contact, is to our minds abhorrent and totally inappropriate. We urge the committee to consider adding a due diligence defence to those provisions.

The submission is to the same effect as the notion of a presumptively abusive relationship, which we would support. Sexual contact with a person younger than 16 ought to raise a presumption that a relationship is abusive, but the presumption could be set aside with appropriate evidence.

We're also concerned that the change in age for sexual consent could undermine the access children might have to information about reproductive health, contraception, and how to keep themselves safe when engaging in sexual contact.

We've seen an unfortunate decline in the United States on the commitment to provide information to young people. Especially if there's going to be a shift to legislating morality, we wouldn't want to see that shift take place in the area of reproductive health education as well.

Finally, we support the deletion of any difference in age for anal intercourse and sexual contact other than anal intercourse. We regard that on its face as discriminatory and contrary to the charter.

Those are our submissions.

[The Chair, Conservative, Art Hanger]

I call the Standing Committee on Justice and Human Rights to order with our continued discussion 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 had a fairly lengthy session this morning, and of course that discussion continues this afternoon. We have a substantial number of witnesses here to listen to, and I might just go down the order here for a moment.

With us today are, from the Canadian Council of Criminal Defence Lawyers, Mr. Trudell—it's good to see you here again so soon, Mr. Trudell; from the B.C. Civil Liberties Association, Jason Gratl and Christina Godlewska; from the Canadian Association of Elizabeth Fry Societies, Kim Pate; from Age of Consent Committee, Mr. Andrew Brett and Mr. Nicholas Dodds; from the Institute of Marriage and Family Canada, Mr. David Quist; and there is another noted person here, Daphne Gilbert, professor in the faculty of law, common law section, University of Ottawa.

Welcome.

We'll begin the presentation as the names appear on the agenda. I'll turn the floor over to Mr. Trudell.