Evidence of meeting #59 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was young.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • 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

9:25 a.m.

Coordinator, Affiliated with Citizens Addressing Sexual Exploitation, White Ribbon Against Pornography

Judy Nuttall

Oh, I am sorry.

9:25 a.m.

Conservative

The Chair Art Hanger

That's not a problem. Just slow down a little.

9:25 a.m.

Coordinator, Affiliated with Citizens Addressing Sexual Exploitation, White Ribbon Against Pornography

Judy Nuttall

Okay.

Letters were sent to all provincial MPPs in Ontario, and in 2006 it was recorded in Hansard that by unanimous vote, the white ribbon from the White Ribbon Against Pornography campaign was to be worn for one day of that week. We also sent 8,000 letters from Barrie constituents to the judges of the Supreme Court, pleading for the age of consent to be raised, as the John Robin Sharpe case was debated.

Why are we doing this? In 1995 a judge ruled in Toronto that a man who had sexually abused a 14-year-old boy received minimal punishment. There was no concept of the agony of the victim. As well, 1999 brought the scourge of child pornography right to our door in Barrie, when Ivan Cohen was found guilty of possessing and producing child pornography. A jail sentence was ruled, but on being sent to the Ontario Court of Appeal, the sentence was commuted to house arrest, causing great anger locally. Then the case of John Robin Sharpe, with all its twists and turns, emerged before the public eye.

The Universal Declaration of Human Rights was and is being abused here in Canada. In exercising rights and freedoms, there must be accountability for the corrupt uses of personal rights that harm other people, especially children, and that abuse of all our rights. The rights of the individual have to be seen in the context of the ultimate good of the nation. The rights of the victim have to be considered against the rights of the offender. Without this, we lose our freedoms. We disintegrate into a justice system that has lost its way, that has lost sight of what real justice is.

The linchpin of the increase in child pornography centres on the age of consent. Canada has an age of consent to sex that is lower than in any other country in the world. Adults can legally engage in sexual activity with children 14 and older. The age of consent creates a large loophole in the law. Case: at 14, Canada's consent is lower than most western nations. There are no other western countries that have legalized sex as low as the age of 14. The National Post reports that a growing number of foreign men have used the Internet to lure Canadian children. And according to Concerned Citizens Against Child Pornography, reducing the age of consent is the key to the rise in Canada's pedophile crime, including Internet luring.

On asking my former MP about this, she replied that it was ancient law. So how many other ancient laws has Canada retained? The U.S.A., the U.K., and other countries have updated their medieval laws on marriage and sex. Why hasn't Canada?

The age of consent continues to be a legal loophole by which pedophiles are abusing our children. Action must be taken, and quickly, in order to protect and ensure the innocence of our children. Police Chief Fantino has said that even third world countries are more civilized and conscientious than ours is about our duty as adults to protect the most vulnerable component of our society, our children. According to Focus on the Family, a clear and present danger is facing our children. And Manitoba Premier Gary Doer has said that we believe the rights of children should be superior rights, in our country, to the rights of perverts.

In terms of development, a 14-year-old is not prepared for the responsibility of sex. Emotional, physiological, physical, mental, psychological, and spiritual maturity—all are factors over the next two to four years. A 14-year-old cannot understand or appreciate the danger of STDs, some of which are fatal, all of which play havoc with the lives of people who have been impacted by them.

Children abused in child pornography demonstrate multiple symptoms: emotional withdrawal, anti-social behaviour, mood swings, depression, fear, anxiety, a high risk of becoming perpetrators in later life, and destructive feelings of guilt and shame. Pornography desensitizes children.

Canada has cumbersome, outdated, time-consuming, ineffective, and expensive pornography investigation and laws. As the WRAP campaign flyer puts it, outdated disclosure rules force police to examine every computer file they seize before a charge is laid. Other western countries examine two or three files and then arrest the pedophile. The work of Project P and other similar groundbreaking endeavours are making clear progress in this very difficult and stressful protective work for Canada and Canadian children.

Finally, the “name and shame” move in England held a very apposite point, as this headline illustrates: “Named and Shamed: The MPs who won't back Sarah's Law”. This is with reference to the offenders' registry. It's similar to Christopher's law in Ontario and Megan's law in the U.S.A.

I call on the federal Parliament of Canada to bring in vital legislation necessary to raise the age of consent from 14 to 16 in order to protect the children of Canada, who are the future generation for this country.

Thank you.

9:30 a.m.

Conservative

The Chair Art Hanger

Thank you very much, Ms. Nuttall.

Now we'll hear Mr. Steve Sullivan of the Canadian Resource Centre for Victims of Crime.

March 29th, 2007 / 9:30 a.m.

Steve Sullivan President, Canadian Resource Centre for Victims of Crime

Thank you, Mr. Chair.

It's a pleasure to be before the committee on this bill. It's one that, Mr. Chair, you and I have discussed in the past in your own attempts to pass similar legislation, which we supported. We supported as well the measures in Bill C-2, which this committee dealt with a couple of years ago and which I think provided added protection for children up to the age of 18, with more discretion, obviously, than this bill.

I won't say very much. It's rare that we come to a committee when everyone seems to agree, at least on the principles of the bill. There's not a whole lot for us to say.

I think I'll echo what Mr. Gillespie said about the issue of the Internet and the discussions that go on within those chat rooms between people who would seek to exploit children.

About the lower age of consent, I was at a conference recently with investigators and crown prosecutors who deal with these kinds of situations, and this was a topic of discussion. One of the investigators gave us a demonstration. He went into a chat room, posing as a girl who was 13. We could tell the number of men who wanted to initiate a discussion with that officer by the pings. It was just ping, ping, ping—one ping after another. It was quite disturbing to see. This was one o'clock in the afternoon, and to see that many people out there, many of whom would, I think, seek to exploit that child—

The officer talked as well about how, when they initiate discussions, some of these individuals will try to keep the discussion going with that child until they reach the age of 14. That was a concern as well. I think this bill will add a tool to the repertoire of law enforcement and will better protect children. It's important to keep the focus on the motivations of the adult and not on the consent of the young person. This is focusing on individuals who seek to exploit children for their own purposes.

I'll just briefly mention one other issue. We've recently testified before some your colleagues on the access to information committee, which is reviewing PIPEDA, the privacy legislation. We're trying to get the debate about privacy—in that case the privacy of Internet subscribers—expanded to include the need to protect the privacy of these children, whose images are being traded on the Internet like baseball cards. We have to begin to deal with the realization that we have young people who have access to Webcams, who are being manipulated by older individuals to share their photos. We need to begin to protect those privacy rights as well.

Thank you, Mr. Chairman.

9:30 a.m.

Conservative

The Chair Art Hanger

Thank you, Mr. Sullivan.

From Justice for Children and Youth, we have Martha MacKinnon and Emily Chan.

Who will be presenting?

9:30 a.m.

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.

9:40 a.m.

Conservative

The Chair Art Hanger

Thank you, Ms. Mackinnon.

We will begin questions. Ms. Jennings is first.

9:40 a.m.

Liberal

Marlene Jennings Notre-Dame-de-Grâce—Lachine, QC

Thank you very much for your presentations.

Mr. Kindred, you referred to section 159 of the Criminal Code, which has already been found to be unconstitutional by several courts in Canada because of its discriminatory nature. You said that it was possible to repeal it without violating committee and House procedures. I would like to hear your suggestions on that.

We agree with the Canadian Bar Association and the other witnesses that the government should have corrected the bill. The government, for whatever reason, decided not to do so. We would like to know if it is possible to correct this bill.

9:40 a.m.

Branch Section Chair, Sexual Orientation and Gender Identity Conference, Canadian Bar Association

Kevin Kindred

Thank you very much.

I should preface my response by saying I'm certainly not an expert in the committee's procedure, and I would also preface it by saying that the firm view of the CBA is still that the most appropriate response to section 159 would be a complete repeal. So I would far from suggest that any other measure would be a complete or appropriate response. However, I'm not sure that the same effect couldn't be accomplished by way of amendments to section 151, the section that does set out the age of consent defence for sexual offences. That section lists a number of sexual offences. I'm not sure that we couldn't accomplish the same end by adding section 159 to the list of offences in section 150.1. Again, that's something to consider as a way around. The CBA's position, though, is that the only really appropriate response is a full repeal of section 159.

9:40 a.m.

Liberal

Marlene Jennings Notre-Dame-de-Grâce—Lachine, QC

Thank you.

The other question that I have is for Ms. Mackinnon, Justice for Children and Youth.

You talked about how your organization was an intervenor in the Ontario Court of Appeal case dealing precisely with section 159. I'd like to ask if that was through the court challenges program, or do you have your own private sources of funding?

9:40 a.m.

Executive Director, Justice for Children and Youth

Martha Mackinnon

Justice for Children and Youth is a legal aid clinic. We are funded primarily, not 100% but primarily, by Legal Aid Ontario. And because we're a specialty clinic—it may be more than one area of law, but it's specializing in the laws that affect youth—we have a mandate to do test cases or legal work that will have a broad systemic effect to enhance both the rights and the protections for young people.

9:45 a.m.

Liberal

Marlene Jennings Notre-Dame-de-Grâce—Lachine, QC

Then the answer is no.

9:45 a.m.

Executive Director, Justice for Children and Youth

Martha Mackinnon

The answer is no, it was not—

9:45 a.m.

Liberal

Marlene Jennings Notre-Dame-de-Grâce—Lachine, QC

In your case, you're fortunate enough to have a specific mandate given to you by the government, I'm assuming, and the budget in order to carry out these test cases, for instance.