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.

Business of Supply--Opposition Motion

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, this issue has sparked quite a discussion. It is an important issue that requires serious consideration in terms of what kind of precedent is being set and how we consider the Standing Orders, the rules of the House.

I would note that while we are not debating the merits of the motion which is slated to be the opposition day motion tomorrow, I would point out that the four bills coincidentally that are in the motion were actually the subject of discussions which took place among the House leaders. There is a process whereby the parties can get together and decide whether or not there is agreement to fast track a certain bill or a number of bills for speedy passage. We often do that by unanimous consent. The very bills that are referred to in the motion have been the subject of those kinds of discussions.

I certainly have some concerns that we are now segueing into another procedure. Discussions by the House leaders were taking place in the usual manner and we were to get back to the government about where there was agreement, and I think there is agreement that we may be able to pass some of the bills unanimously, but suddenly, we have been confronted with a motion that bundles things together. The motion is doing through the back door what otherwise would be done through another process. We certainly want to voice some concerns about that in terms of what sort of precedent it sets in the House.

For example, on one of the bills, Bill C-22, the age of consent legislation, we are still in a position where witnesses have not yet been heard.

We are here to debate legislation. We are here to do the public's business. We are here to give due process to things. While that does not preclude any of us from seeking unanimous consent to get something done, I believe that this is a very irregular procedure. On that point, it is something which should be seriously considered as to whether or not it is in order to do business in that manner, especially in the context that these precise items were already under discussion or were already being dealt with using the procedures that we have before us and in a way that everybody understands and in a way which every party partakes.

If that procedure in the motion is approved, this is the kind of thing where we in the NDP, the smallest party in the House, would be the ones who would often be the victims of this kind of procedure as the smallest party. I do not think that is intended.

Mr. Speaker, I would ask you to consider the points that have been raised. I would ask you not to just give a quick ruling on this, but to actually consider the precedent that is being set here and the fact that it is in some ways subverting the usual procedures that we have established to deal with this kind of business.

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

Moving along, if I understand correctly, Bill C-22 is truly beneficial because by changing the age of consent, we're preventing section 212 from being used as a defence. For example, in the past, when the john was arrested, he could argue that he thought the young women was of a certain age, that he had requested identification, and so on. These excuses were often used. If I understand correctly, this would be an improvement, because a provision in the bill will afford more protection to young women.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, Monsieur Petit, the facilitating, the support of witnesses in a criminal proceeding is many times a challenge.

One thing I think this bill does is bring some clarity to the offence that is being talked about. We won't get into discussions with, for instance, a 14-year-old—whether the 14-year-old consented, for instance—because if the individual is 20 years of age or more, it is an offence to have any sexual activity with that individual. So we won't have the extra hurdle that takes place in a courtroom, which presently exists, where the accused can make the claim that the 14- or 15-year-old consented to that and then that becomes an issue. That becomes one of the great challenges, quite frankly, for police, crown attorneys, and those who are interested in protecting children.

So bringing this kind of clarity to that particular issue, I think, is one of the major benefits of Bill C-22. To that extent, it will be welcomed in communities across this country that are quite worried about the sexual exploitation of children at that age.

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

Thank you.

Thank you, Minister, for coming here to present Bill C-22 to us.

I don't know if I should direct my question to you or to Ms. Morency. As you know, for nearly three years, prostitution rings operated in the Quebec City area. The young women involved were dominated by certain groups of men, specifically rapper groups where members were barely five or six years older than the victims. When the trials began, it was very difficult to get these young girls to testify for various reasons: they were gang raped, they were in love with the person who got them into prostitution, and so on. I'd like to know if Bill C-22 will have an impact on section 212 of the Criminal Code. Basically, this provision is problematic because we're encountering a number of problems with prostitution rings. Will Bill C-22 afford young people better protection, given the problems encountered with section 212, even when the victims are 18 years of age? Young women are afraid to testify, among other things.

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

Thank you so much for being here today, Minister, and thank you for your presentation.

As you know from the speeches the Liberals made at second reading of this bill, Bill C-22, and from our Liberal justice strategy, which we announced in October 2006, Bill C-22 is in fact one of the bills the Liberal Party and the Liberal caucus supports. And back in 2006 we offered to fast-track it for the government, to work with the government to see that it was fast-tracked.

I'm pleased to hear in your response to my colleague Brian Murphy that you're delighted that the Liberals are supporting C-22 and that you want to see it come into effect and be enacted as quickly as possible.

So you have obviously been made cognizant of the Liberal opposition day motion, which will be debated tomorrow as part of the supply day for opposition, which makes an offer, for the third time, to this Conservative government that we are prepared to work with the government to have Bill C-18, An Act to amend certain Acts in relation to DNA identification; Bill C-22, An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act—on which you're appearing before us right now—Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments); and Bill C-35, An Act to amend the Criminal Code (reverse onus in bail hearings for firearm-related offences) deemed to have been considered by the House of Commons at all stages.

Should the government agree to vote in that way, this bill, C-22, Bill C-18, Bill C-23, and Bill C-35 will have been deemed to have gone through the House of Commons at all stages.

So I would hope that, given your delight in hearing that we're prepared to support Bill C-22.... You're not learning of this for the first time, because that was announced back in October 2006. The offer was made back then. Unfortunately, the government only took us up on three bills: C-9, conditional sentencing; Bill C-19, street racing; and Bill C-26, payday loans. But Bills C-18, C-22, and C-23 were part of that offer. You and your government, in its wisdom, decided not to take us up on it in October. The offer was again made when we came back after the Christmas break. The government decided not to take us up on it.

We're now making it for a third time, this time in writing, as part of an actual motion on which you and your colleagues will be called on to vote. I'm hopeful, and I'm asking if you will be prepared to recommend to your Prime Minister, to your colleagues, that they vote in favour of the Liberal opposition day motion, which would deem Bills C-18, DNA identification; C-22, age of protection; C-23, criminal procedures; and C-35, reverse onus for bail hearings, to have been considered by the House at all stages and adopted.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Presumably they wouldn't give authorization in the face of a Criminal Code offence. That's the bottom line. In the case of a 25-year-old who wanted to marry a 14-year-old, presumably the court wouldn't give consent to that if Bill C-22 were passed.

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

Provincial law sets the minimum age, within their competence, over solemnization. For the most part, provinces set it at 16 with parental consent, or 15 in the Northwest Territories or Nunavut. In a situation where someone below that age wishes to marry, three jurisdictions disallow that: Quebec, Yukon, and Newfoundland and Labrador. In the other jurisdictions it's only allowed where it's either approved in advance by a court, or in three jurisdictions where the minister responsible for the solemnization of marriage provides written permission to that effect.

So Bill C-22 will not prevent somebody who meets the criteria under provincial legislation from marrying a person who is within the close-in-age exception. If a court is being asked to approve the marriage of a young person, the exceptional circumstance provided in the provincial legislation is generally because it's expedient and in the interest of the young person—she's pregnant, those types of issues. The court would be cognizant of what the criminal law says. If this were a sexual assault under the criminal law, the court would make a determination whether it was expedient or in the interest of the young person to authorize a marriage in those circumstances.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chairman. I'm pleased to be back before the committee.

I'm pleased to have with me Ms. Carole Morency, acting general counsel, from the Department of Justice.

I would like to make some opening remarks.

I am pleased to address the members of this committee as they begin their study of Bill C-22, An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act.

Bill C-22 supports a key component of the government's tackling crime commitment. It proposes to better protect youth against adult sexual predators by raising the age of consent from 14 to 16 years and renaming it the “age of protection”.

The two issues of, one, the protection of children and youth against sexual exploitation, and two, the age of consent are well known to this committee. In 1987, I and other members of this committee were also on the legislative committee that considered what was then called Bill C-15. The former bill sought to significantly overhaul and modernize the Criminal Code's response to sexual abuse. I recall that this issue attracted considerable scrutiny and commentary at the time, and today we see that this level of interest continues with Bill C-22—as well it should; all of us, after all, are trying to better protect youth against sexual exploitation.

Mr. Chairman, there are many things on which Canadians and parliamentarians may agree to disagree, but my understanding today, just as it was 20 years ago as a member of this committee, is that the protection of children and youth against sexual exploitation is not such an issue. Indeed, it is an objective for which we typically find universal support, and to the extent that there may be some disagreement, it is usually on how best to achieve this objective.

So this is our starting point. Canadians have told us that youth need better protection against adult sexual predators, and the government agrees. This is exactly what Bill C-22 delivers.

The age of protection refers to the age at which criminal law recognizes the legal capacity of a young person to consent to engage in sexual activity. Below this age, any and all sexual activity with a young person, from sexual touching to sexual intercourse, is prohibited. Of course, any non-consensual sexual activity, regardless of age, is a sexual assault.

Currently the Criminal Code sets the age of protection at 18 where the sexual activity involves prostitution, pornography, or it occurs within a relationship of authority, trust, dependency, or is one that is otherwise exploitive of the young person. Bill C-22 maintains this age of protection.

The Criminal Code sets the age of protection for other sexual activities at 14, and this is what Bill C-22 proposes to change by increasing it to 16 years.

There is currently one exception to the 14-year age of consent; 12- and 13-year-olds can consent to engage in sexual activity with another person who is less than two years older, but under 16 years, and with whom there is no relationship of authority, trust, dependency, and it is not otherwise exploitive of the young person.

Bill C-22 maintains the existing two-year close-in-age exception for 12- and 13-years olds, but it also proposes a new close-in-age exception for 14- and 15-year-olds, who would now be below the new age of protection. Under the proposed new exception, 14- and 15-years-olds would be able to consent to sexual activity with another person provided the other person was less than five years older and the relationship did not involve authority, trust, dependency, and was not otherwise exploitive of the young person.

Why a five-year close-in-age exception? First, our objective with Bill C-22 is to protect youth against adult sexual predators and not to criminalize consensual teenage sexual activity. A five-year close-in-age exception also recognizes that of those youth who may be sexually active, the vast majority are sexually active with partners who are within that age range.

Bill C-22 also provides two other time-limited or transitional exceptions. When the new age of protection comes into effect, it is possible that there may be some 14- and 15-year-olds who are already in an established relationship with a partner who is older than the teenager by five years or more, and who therefore will not fall within the proposed five-year close-in-age exception.

A time-limited exception is therefore proposed for these youth where they are already, as at the date of entry into force of the new age of protection—married, or living in a common-law relationship as already defined by the Criminal Code or as proposed by Bill C-22, and provided always that the relationship is not one of authority, trust, dependency, or is not otherwise exploitive of the young person. The common-law relationship exception would therefore be available for a 14-or 15-year-old who has been living in a conjugal relationship for a period of at least one year, as currently defined by section 2 of the Criminal Code, or under Bill C-22, where the common-law relationship had not endured the requisite minimum period of one year but had produced a child, or one was expected.

But under either formulation of the definition of a common-law relationship, a second prerequisite always applies, and the relationship is not otherwise illegal because it involves authority, trust, dependence, or is otherwise exploitive of the teenager. As a result, neither the marriage nor the common-law relationship exception would be available where a 15-year-old wanted to marry or begin to live common-law with a 25-year-old on the day after Bill C-22 comes into effect.

These are the reforms proposed by Bill C-22. Let me go back to where I started: why these reforms are needed. As I said at the outset, the objective of this bill is to better protect 14- and 15-year-olds against adult sexual predators. Statistics Canada's April 2005 Juristat on “Children and youth as victims of violent crime” looked at all violence against children and youth, including sexual assaults. It reported that teenage girls aged 14 to 17 accounted for approximately one-third of all child and youth sexual assault victims, and the majority of offenders, 86%, were known to the victim.

Internet luring, or the use of the Internet to communicate with a child for the purpose of facilitating the commission of a sexual or abduction offence against the child, accounted for 10% of all reports received by Cybertip.ca during its two-year pilot phase. Cybertip.ca is Canada's national tip line for reporting online child sexual exploitation. Of these reports, 93% of the victims were female, and the majority, 73%, were between the ages of 12 and 15.

From these few statistics, it's clear that 14- to 15-year-olds are at a greater risk of being sexually exploited, including through Internet luring, and yet they are the ones who are precisely left unprotected by the current age of consent of 14 years. Bill C-22 will change this. Unlike the law's current approach, this bill will also remove the guesswork as to what constitutes sexual exploitation of these youth by drawing a very clear line. If you are five or more years older than a 14- or 15-year-old, you are prohibited from engaging in any sexual activity with that young person.

Last, our focus under Bill C-22 is on those who would sexually exploit these youth and not on whether the young person consented to that exploit of contact. Mr. Chairman, this is as it should be.

Mr. Chairman, I said at the beginning of my remarks that Bill C-22 is a key component of this government's commitment to tackle crime, but I hope the committee will look beyond this and will also see Bill C-22 for the immediate and real opportunity that it presents to us, to stand shoulder to shoulder and clearly say with one voice that we condemn the sexual exploitation of youth by adult predators. Bill C-22 delivers on what Canadians want and, most importantly, on what our youth need and deserve.

Thank you very much, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. It is Wednesday, March 21, 2007. Our agenda is, as noted, pursuant to the order of reference of Monday, October 30, 2006, Bill C-22, An Act to amend the Criminal Code (age of protection) and to make consequential amendments to the Criminal Records Act.

Appearing before our committee this morning is the Minister of Justice, Mr. Rob Nicholson.

Thank you, Minister, for appearing. I turn the floor over to you now.

[Rob Moore, Conservative, Fundy Royal, NB]

We could have a debate on this, and I don't think now is the time.

I do reject, though, the premise of some of Mr. Ménard's comments that somehow we can pigeonhole police officers into one category of ideological thought or persuasion. Just as there are lawyers on these judicial advisory committees--do we say that lawyers are of one ideological persuasion? I do not believe you would suggest that. In the same way, the police officer representative on the judicial advisory committee should not be put into one box. So I think that was an unfair thing to say.

Also, on the issue of teachers, journalists, and firefighters, there is the ability to appoint anybody to the judicial advisory committees. There's a spot, as we know, for a representative from the province; a representative from the bar association; and at-large representatives such as teachers, journalists, or anybody else. But we did create a spot just for police officers, because police officers play a part in the judicial system, just as lawyers play a part in the judicial system.

You may disagree with that, and I take it that you do, but I do think it's unfair to suggest that all of the police officer appointees would come with one set of value systems or one set of ideological thought.

Now, as to the motion of Ms. Jennings, I put forward something we could support. Obviously we do not support the preamble, so we will not support the motion.

We're trying to be constructive, so I agree with Mr. Ménard that we should have a study. I agree with him now, as Ms. Jennings has amended his motion, that it should not interfere with what has come from the House, with what this committee is invested with from the House, and that's the responsibility for Bill C-18 and Bill C-22.

So we could have unanimous agreement on this motion, but not if we leave in the preamble or paragraph 1 of the motion.

[Rob Moore, Conservative, Fundy Royal, NB]

I've listened to what Mr. Petit said, and I think he was referring to extra sessions if we have a broader consultation, and I think that's called for.

Earlier I was asking why one year. I question Mr. Ménard on that, because as you know, the judicial advisory committees have been in place since 1988 and they've been changed a number of times. To say it is something earth-shattering that the composition of the judicial advisory committees would be changed—in my opinion a positive change, but that's a matter for debate.... We're all entitled to our opinions on it, but why would we just look at the last year? I think we should look at more than the last year concerning the judicial advisory committees.

Now, if we're discussing just Ms. Jennings' motions and amendments to her motions, I would be prepared to support a motion--if you want unanimous support; if not, it doesn't matter. But if you wanted unanimous support, I would be prepared to support a motion that did not have such a torqued preamble, as we have already discussed—I'm certainly not going to support your preamble—and that calls for the committee to devote two sessions...and carrying on with the rest, as long as it doesn't interfere, as you said, with our priority to deal with Bill C-22.

I'm fine with point 2, with the amendment to change the “three” to “a minimum of two”.

Then finally, in point 3, I would say: “That these additional sessions be dedicated to hearing witnesses who will inform the Committee of the consequences the government's proposed changes will have on the...legal system.”

I think it's presupposing the outcome of the testimony to say "the integrity of the legal system", as if there would be some negative impact on the integrity. We'll draw our conclusions perhaps from the testimony we hear from witnesses, but I'm not prepared to support a motion that's calling for the study of changes that we've made to the judicial advisory committee. I'm fine with studying it, and I've made that clear, but not with a motion that seems to already have drawn its conclusion. I would like to hear the testimony, and then we can all draw our conclusions.

If the opposition members want to genuinely study it, then I would suggest we talk about making those few amendments that leave in place the main goal of studying the judicial advisory committees for a couple of days, at times that do not take away from Bill C-18 or Bill C-22.

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

Thank you, Mr. Chairman.

I would like to thank my colleague Mr. Réal Ménard for his comments. I can tell you that we Liberals are in support of Mr. Ménard's motion, first of all because we believe that the objective is quite commendable and also because it is a topic on which many parties, both within and outside Parliament, have already expressed an interest, namely to obtain a review of the judicial selection process that the current Conservative government has set up.

Nevertheless, given the objectives and priorities of the Liberal caucus regarding strategy and justice, we have a liberal justice strategy by which we have given priority, ourselves, to government bills presented last spring, after the opening of Parliament. In the fall of 2006, we had very clearly identified bills with which we were in complete agreement and we offered our collaboration and cooperation to the government so that we could fast track these bills so that they could be debated in the House, referred to committee, studied in committee, referred at report stage to the House, etc. Unfortunately, the government did not feel it necessary to accept our offer, which dealt with several bills, including Bill C-22, which concerned the age of consent. It was only in February that the government finally saw fit to put it on the calendar for the second reading debate.

We want to see the work of this committee progress, with respect to this bill. That's why, despite the fact that we are supporting Mr. Ménard's motion in the name of the Bloc, we members felt that it would be wise to make or suggest amendments to his very motion. Our objective was to enable the committee to continue its work and follow its regular calendar, to proceed with the second reading examination of Bill C-22 on the age of consent, but at the same time, to take into account the importance that many interested parties are giving to the review done by the government of the judicial selection process, without any consultation.

I should add that I am not the one saying this, nor is it Mr. Ménard, Ms. Freeman, Mr. Comartin, Mr. Murphy, Mr. D'Amours or Ms. Barnes. This is coming from the Chief Justice of the Supreme Court of Canada herself, who stated publicly that if the government wanted to change or review the judicial selection process, it was obliged to consult. However, this consultation was never done.

So not only do we support Mr. Ménard's motion, but we have also brought forward our own amendment. You heard Mr. Ménard state that the Bloc will be supporting the Liberal amendment, presented by me, to his motion.

I move that a vote be held.

[Rob Moore, Conservative, Fundy Royal, NB]

I have a couple of points, Mr. Chair.

One, during the course of the witness testimony, there was some discussion--off the record, I would call it--flying back and forth suggesting that we on this side would support Ms. Jennings' motion. That is certainly not the case, considering the preamble. If it was a sincere effort to have our support so that we could have the unanimous vote of committee....

Among other things, I was very clear last week that the government would not support a motion or an amendment to a motion that has such torqued language in the preamble. If anyone doesn't believe that, then they can just reference the discussion we had at the last committee: “Whereas this modified review procedure bears flagrant signs of partisanship and ideological influence”. Does that sound like something we would support? If there's a sincere effort to have us support it, we're not even getting past first base when that's the kind of preamble we have.

I'll give time to Mr. Petit, as I know he has brought some ideas forward.

I think this study is too narrow. We've had judicial appointments from the very beginning of time as a country, and why are we looking at judicial appointments from the last year? I can't help but think that this is a partisan attack, or almost mischief, on the part of others. There's this issue of judicial appointments, and there have been judicial advisory committees since 1988. Judicial appointments have been made by ministers of justice forever, yet we're so concerned about the judicial appointments process. But let's just look at the last year. Let's just look, since there was a change in government. Let's not look to the year before last. Let's not look to 1993 and forward, the last 13 years, when we had a different government. Mr. Ménard's motion is, let's just look at what's happened since we formed government. To me, that's insincere. If we want an honest look at judicial appointments, or if we want an honest look at the judicial advisory process, then we have to look past the last year.

That would be my position. It may not matter; you may have the numbers, but the government is not going to support a motion that has such a torqued preamble.

We discussed last time about two sessions rather than three. I made those presentations to Mr. Ménard and Ms. Jennings and others.

Also, on the issue of interfering with committee work, Ms. Jennings' motion does make it clear that we would proceed with regularly scheduled committee work, and we all agree we should get on with Bill C-22. This, I trust, would not interfere with that, but still it's too problematic for my support.

[Rob Moore, Conservative, Fundy Royal, NB]

I hear what people are saying. My thought is that we should stick to our regular schedule when it comes to the bill. So if we're scheduled to meet Tuesday and Thursday, we should meet Tuesday and Thursday on what we were scheduled for.

If we're going to study the judges, then I think that should be the extra day, not one of the days we've already scheduled to study Bill C-18 or Bill C-22. I don't want anything to impede our study of Bill C-22.

If we have an extra day to study this, as Mr. Ménard is suggesting, then I think that should be the extra day.

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

If you hold on, it would be one hearing per week when the House is in session, beginning the sitting of next week. It would be in addition to the two regularly scheduled hearings of the committee.

This committee regularly meets on Tuesdays and Thursdays, from 9 to 11 a.m. The committee would schedule a third session in order to proceed with Bill C-22.

On the Tuesday beginning next week, we would hold our first session on the judges. The Thursday regular session would be on Bill C-22. We would add a third session that would be a second session for Bill C-22.

We would do the same thing the following--