Justice Committee on March 29th, 2007
A recording is available from Parliament.
On the agenda
- Paul Gillespie Consultant, As an Individual
- Lynn Barr-Telford Director, Canadian Centre for Justice Statistics, Statistics Canada
- Tamra Thomson Director, Legislation and Law Reform, Canadian Bar Association
- Margaret Gallagher Treasurer, National Criminal Justice Section, Canadian Bar Association
- Kevin Kindred Branch Section Chair, Sexual Orientation and Gender Identity Conference, Canadian Bar Association
- Judy Nuttall Coordinator, Affiliated with Citizens Addressing Sexual Exploitation, White Ribbon Against Pornography
- Steve Sullivan President, Canadian Resource Centre for Victims of Crime
- Martha Mackinnon Executive Director, Justice for Children and Youth
- Karen Mihorean Assistant Director, Canadian Centre for Justice Statistics, Statistics Canada
- William Trudell Chair, Canadian Council of Criminal Defence Lawyers
- Jason Gratl President, B.C. Civil Liberties Association
- Kim Pate Executive Director, Canadian Association of Elizabeth Fry Societies
- Andrew Brett Member, Age of Consent Committee
- Nicholas Dodds Member, Age of Consent Committee
- Dave Quist Executive Director, Institute of Marriage and Family Canada
- Daphne Gilbert Faculty of Law, Common Law Section, University of Ottawa, As an Individual
- Christina Godlewska Articled Student, B.C. Civil Liberties Association
The Chair Art Hanger
Thank you, gentlemen.
I'd like to turn to Mr. David Quist of the Institute of Marriage and Family Canada. Dave, the floor is yours.
March 29th, 2007 / 12:30 p.m.
Dave Quist Executive Director, Institute of Marriage and Family Canada
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.
The Chair Art Hanger
Thank you very much, Mr. Quist.
Finally, Ms. Daphne Gilbert.
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.
The Chair Art Hanger
Thank you, Ms. Gilbert.
I'm going to ask the committee members to bear with me and help me resolve a slight problem.
Mr. Comartin disappeared on me.
Mr. Comartin was first to leave; he had an appointment at a quarter to one, apparently. Next on my list was Mr. Moore, and I don't know if there's anyone else here—Mr. Murphy as well—
Larry Bagnell Yukon, YT
Mr. Murphy has to leave.
The Chair Art Hanger
I will split the 15 minutes between now and one o'clock between Mr. Murphy and Mr. Moore.
Go ahead, Mr. Murphy. You have questions?
Brian Murphy Moncton—Riverview—Dieppe, NB
Sure. Yes. Thank you, Mr. Chairman.
The Chair Art Hanger
Who else has to leave?
Brian Murphy Moncton—Riverview—Dieppe, NB
We thank you all for your testimony. We listened attentively.
I think, with fairness, we have to realize that we're in a context here where in the world, age limits are set; we're in a spectrum. Every community is different. In some places in the United States, there are age limits of 18 years, with no close-in-age exception. In Mexico, it's 12 years. So we're in that spectrum. We know that in Europe it's essentially a mixed bag between 14 and 16, some with close-in-age exception, some not. I think that's one of the contexts.
The other context that is very important to remember is that this is a committee that has a legislative and political aspect to it. And while I myself will support this bill, what made it palatable, despite the rhetoric of the continual efforts to get laws like this, is that this is the first time that a close-in-age exception of five years has been tabled by way of legislation. That makes it palatable.
Perhaps I could be further persuaded, through the eloquence of Mr. Trudell and others, of a presumption. I think that's a good suggestion.
But this is what we've been presented. We're happy with it, to some degree, but we must underline, as the official opposition, that it's piecemeal, that it doesn't take into account the glaring paucity of any reference to anal intercourse. This is a glaring hole, and it should have been addressed.
If this act were not purely political there would have been more of an omnibus nature about it. But we're here, and this is what we have, and frankly, I support it.
I heard some very interesting testimony. I have two questions. One is to the B.C. Civil Liberties Association, and the other is to the Elizabeth Fry Society—and it picks up on your comments. It's the whole aspect of minors—people under 18 in the provinces like Ontario, and 19 in the province of New Brunswick. It's a hodge-podge. To quote our neighbours to the south, you can be old enough to go to war and lose your life, but not to drink in the state of Texas. We know that everything from Texas, politically, doesn't make sense. But in this country, looking in the mirror, we see we have some problems in terms of age discrepancy with respect to certain rights. I know the Civil Liberties Association would be very interested in those anomalies. Frankly, because I don't follow it that closely, I've yet to have a lot of information from what work you're doing either in B.C. or across Canada with respect to those anomalies.
I'd like to hear a little bit about that, because we're under time constraints, keeping in mind that you have to share your time with the second question, which I'm putting to Ms. Pate.
Ms. Pate, you said, and this is as close to a quote as I can get, “There is a political and practical reluctance to enforce existing laws.” You went into one example. I'm very much interested in that, because as you know, we believe that police forces are under-resourced and that they have to cherry-pick what laws they are going to enforce. Sometimes judges do this. Sometimes prosecutors do this. Rather than throwing legislation and letting it stick on the wall—most of it poorly written, like on the back of a napkin in the parliamentary secretary's office, perhaps—we need a more comprehensive enforcement policy and to resource that.
Those are my two brief questions. I would ask you to respect the time in answering those.
President, B.C. Civil Liberties Association
Just very briefly, the Civil Liberties Association is in the process of studying the very different ages for consent in marriage, driving, enlisting, having sex, drinking, and that sort of thing, and voting, of course, quite critically. It does seem like a hodge-podge. There seems to be little attention paid to capacity. And it would seem as though on the face of it, many of these activities have overlapping levels of responsibility and appreciation of the emotional consequences, as well.
As with the study of this bill, it seems as though little attention has been paid to the psychological and sociological evidence pertaining directly to the issue of capacity. So my friend Mr. Quist will speculate that 15-year-olds are unable to deal with the emotional consequences of having sex, without tendering any evidence—rather, relying on opinion polls. To that extent, the approach to children's sexual autonomy or the sexual autonomy of minors is much more populist than principled, and that seems to be, in our view, a dangerous approach.
The Chair Art Hanger
Executive Director, Canadian Association of Elizabeth Fry Societies
I was referring not necessarily to needing more police. I think you're right, that it's targeted. Sometimes it's very difficult to investigate and uphold sexual assault charges, and in our experience, and certainly in my experience now—I'm at the law school with Ms. Gilbert right now teaching a course around these lines—it's very clear that the ability and the will to police and protect children and women when they're in abusive situations is problematic, and that's what I was referring to.
If in fact our interest—and your interest, as you've articulated—is protection of children and youth, then I would argue that there are already provisions that we need to be focusing on implementing, not necessarily spending more time or money creating new laws that create a perception of more protection when in fact, if it's still not taken seriously at the forefront, we may not see any greater protection.
In fact this provision, as I went on to say, also creates the potential for ending up inadvertently with more young women in particular who might be in exploitive situations being criminalized if they're unwilling to testify, which is already an issue that we know exists in violent relationships to start with; that women who are for whatever reason fearful, children who are fearful to proceed after they initially report, then often will end up being charged themselves. That's the concern I was trying to raise.
The Chair Art Hanger
Thank you, Mr. Murphy.
Rob Moore Fundy Royal, NB
Thanks, Mr. Chair.
I want to reiterate. We've had several committee meetings on this already and have heard from a great panel of witnesses both today and in the past. Oftentimes the conversation turns around children's sexual rights, the rights of young people to engage in sex, mostly with other young people.
With respect to those who are raising that issue, I think this bill fully contemplates that. The bill we've brought forward has a close-in-age exemption that fully prevents any criminalization of activities between peers, with a five-year close-in-age exemption.
What this bill aims to get at—and we heard this in our previous panel, and I'd like some comment on it—is that we hear of those who actually treat Canada as a haven. They may come from a jurisdiction where the age of consent is 16. I'll use the example of a 50-year-old male, but we could use the example of a 40-year-old male or a 30-year-old male or a female.
I just read this morning about a case of a female where the age was reversed, but a significantly older person who wants to have sex with a 14-year-old or a 15-year-old. In their home jurisdiction it is completely prohibited, because the age of consent is 16. In Canada, the age of consent is 14. Now, there are categories whereby a 14-year-old would be protected if there were an exploitive relationship. That has to be proven.
What we have is a situation where society has said to us, and parents have said to us, they think this is already illegal. That's the evidence we heard. We've heard from witnesses who say that when they tell parents that a 40-year-old can have sex with your 14-year-old, they're shocked. They think this is already against the law.
What this bill aims to get at is to send a message to individuals who would like to come to Canada or are in Canada and want to have relationships with people who are significantly younger, 14 and 15 years old, that this is not going to happen, that it's against the law.
I'd like a general comment on how we've addressed the close-in-age. There may be some in this panel who think that “close in age” should be more than five years, and if that's the case, I'd like to hear arguments to support it.
I guess my question is—what this bill gets at is not about teens having sex with each other—whether you think it's ever appropriate for, as an example, a 40-year-old or a 45-year-old man to have sex with a 14-year-old. Is it ever appropriate in our society for someone who is 20 or 30 years older than a 14-year-old to have sex with them?