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.

[Carole Morency]

Consent of a 12- and 13-year-old is only valid with another person provided there's less than two years difference in age. You have a two-year close-in-age exception.

So it's age 18, at the upper limit, for prostitution, child pornography, these other exploitative relationships of trust, dependency, etc.; and at the bottom, a 12- or 13-year-old can engage in sexual activity with somebody who is less than two years older, and age 14 for all other purposes. Bill C-22 would move that bar up to age 16, maintain that lower two-year close-in-age exemption for 12- and 13-year-olds, but for 14- and 15-year-olds, the new ones who would be protected by Bill C-22, Bill C-22 proposes a new, broader close-in-age exception of five years, so less than five years.

Again, it's always provided that there's no relationship of trust, dependency, or authority. Even if it's a peer, a 15-year-old can sexually assault another 15-year-old. If it's not a question of consensual activity, the Criminal Code will still address that as well, because no consent is an assault.

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

Thanks.

Just in the vein of drawing lines and trying to move forward a little bit here, when you take Mr. Comartin's scenario of an attempt to identify exceptions to the rule and therefore make them, it would seem to suggest to me, with what exists now, let's move Bill C-22 aside right now and deal with the age of consent being 14. What exceptions to the rule do we have with the existing legislation, if any at all?

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Chair, on that point, I agree with people who want to get on with it, but we're talking about protecting young people who are under the age of 16. In all the facts I'm hearing, now the young person is pregnant.

We support Bill C-22. We're trying to prevent these sexual relationships from happening. But once someone becomes pregnant, all the rules go out the window and it's okay that that relationship is taking place. To me, that's kind of defeating the purpose of the bill. We have an age of protection to protect young people. If that young person becomes pregnant, we don't throw the rules and the protection out the window. If they get married, we don't throw the protection out the window.

[Carole Morency]

Bill C-22 adopts the current definition of a common-law partner in the Criminal Code, so it's the same definition, an established conjugal relationship of one year or more. We're recognizing the possibility that a couple may have been in a shorter period of relationship and she's pregnant, or a child has already been born of the relationship. In that situation, if you're looking at an established relationship, the greater good would be to protect that established relationship because of the child, even though they don't meet the one-year prerequisite. Bill C-22 contemplates that. But short of those two situations, Bill C-22 does not provide any further exceptions.

[Carole Morency]

I can't comment specifically on each jurisdiction. In fact, this is an issue that's been longstanding. As members around the table will know, over the years the Department of Justice has consulted with members of the public and officials in the provinces and territories on issues involving child sexual exploitation, including the age of consent. There typically is a general consensus of support for measures that will better protect children and youth against sexual abuse and exploitation.

On the specific issue of the age of consent, there has been a divergence of opinion in prior consultations or discussions with FPT officials in terms of how and when this would be effected. The former Bill C-2 in the previous Parliament had addressed some of those concerns. Bill C-22 addresses concerns that continue to remain and are shared by provincial counterparts.

In the context of the current FPT discussions, I can say that the age of consent issue was raised with me. After Bill C-22 was raised, there were some questions from FPT officials, on the family law side, about how this would operate. And we had a similar exchange of information to what we've just had with this committee: a discussion of what the division of powers is right now; how provinces do or do not allow young people under the age of 16 to marry, and in what circumstances; and what would be the interplay between Bill C-22 and those powers.

That's as far as I can speak personally. For sure, there have been attorneys general who have spoken publicly in support of Bill C-22. I believe Alberta and Manitoba have. Over the years there's been a range of views generally supportive of the direction of Bill C-22, which is to better protect against adult predation.

[Carole Morency]

If I'm reading the amendment correctly, it would amend the whole of proposed subsection 151.1(2.2), which provides a transitional exception, not only for married couples as of the date of coming into force, but also for those in common-law relationships needing a definition.

The numbers provided in testimony by the Canadian Centre for Justice Statistics showed 72 per 100,000 of population. If you look at what we know about how many were married or estimated to be married in 2005, for example, the majority in that category are in common-law relationships. There are no checks and balances in place with those types of relationships.

Again, does this come back to Mr. Moore's point that by extending the transitional exception to make it permanent, you basically open the door to do exactly what Bill C-22 is trying to do, because the overwhelming numbers are in common-law situations? So why bother applying to marry, because a 25-year-old could move in with a 15-year-old, or she becomes pregnant, and this gets around and undermines Bill C-22.

So everything that Mr. Moore has said, but specifically in terms of how I read the amendment to extend the transition exception to both types of relationship, perhaps a handful of marriages and an overwhelming number of common-law situations.... And that's where everyone would go.

[Rob Moore, Conservative, Fundy Royal, NB]

I'm just thinking about Mr. Comartin's fact scenario. In Mr. Comartin's fact scenario, under Bill C-22, a criminal offence has already taken place. You have a 21-year-old having sexual relations with someone who, in his fact scenario, was 15 years old. We're not interested, I don't think, in creating a situation where someone is able, then, after a criminal offence has taken place....

The whole idea with Bill C-22 and raising the age of protection is to prevent people who are more than five years older than a 14- or a 15-year-old from entering into relationships with them. So to somehow say that now we can make it all better and pretend that a criminal offence didn't take place by getting married is defeating the purpose of what we're trying to do.

We don't want to see a rush to the altar by these individuals who are in many cases in a position where they could have great influence over this individual. It might be a situation of duress. We've heard examples of where sometimes the young person was in this situation and may not be cooperative, but they're with someone who is significantly older.

I fail to see how this could be accomplished practically. There's already a transitional provision in the bill. To somehow make marriage a blanket defence or to be able to retroactively go back and pretend an offence didn't take place because at some point in the future you're going to get engaged and married, would be defeating the purpose of the bill. Where do you draw the line? If someone gives someone an engagement ring, that offence didn't take place?

It's very clear in this bill. Right now in Canada the age of consent is 14. We've heard witnesses overwhelmingly say that this is too low, that there are adults who are preying on 14- and 15- year-olds. So this bill raises it to 16.

If we allowed our imagination to really get carried away, we could come into some situations, but the statistics that I've seen from Statistics Canada don't bear out the concerns. Number one, in most provinces you have to be 16 to be married anyway, and that's the age of consent in this bill. Number two, in provinces where you don't have to be 16, you can still get married, under this bill. There's no conflict whatsoever as long as you're within a five-year close-in-age exemption. If you're not within the five-year close-in-age exemption, then in your scenario a criminal offence has already taken place. And that's the criminal offence that this bill tries to address.

I understand the intentions, but I can't support creating confusion--I think this is really what this could create--with something that we want to try to keep a very strong and straightforward message on.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I think that's a constitutional question, and I'm not sure I have the answer to it. The conduct, however, would still be a criminal act even if the marriage was acknowledged by the parents and the province. We could get through the totally ridiculous scenario of saying we're going to acknowledge the marriage but they can't have a sexual relationship as part of the marriage until the girl is 16 or 18 or whatever it would be. That's not realistic.

Aside from that, even if that marriage were allowed to go ahead by the province, the sexual conduct within the marriage would be a criminal act and the senior person in the relationship would be committing a criminal act subject to the penalties that Bill C-22 provides.

[Carole Morency]

To confirm, the federal government does have authority over what we call the “formal capacity”. The legal term is “essential validity” of marriage, which includes setting the minimum age to marry. Provincial and territorial governments have constitutional jurisdiction over the solemnization of marriage: setting the procedures, how licences can be obtained. In the course of the provinces doing that, they prescribe a minimum age to marry.

Under constitutional law, if either level of government purports to legislate in an area that is outside its area of competency, it's ultra vires of that government. To the extent that there is an inconsistency between legislation at the two levels of government, the constitutional doctrine of paramountcy says that the federal law prevails.

In this case, Bill C-22 proposes to set a new limit for age of consent. How would that impact in terms of marriages? As Mr. Moore has said, it does not prevent a young person who meets the conditions prescribed by the provincial law from marrying, provided that the partner is less than five years older in age.

The whole objective of Bill C-22 is to provide a clear definition of when a relationship between an adult and a young person is exploitative. Bill C-22 is saying that we want to address the adult predators. Bill C-22 proposes that the adult predator be defined as a person who is five years or more older.

Bill C-22 says we know that certain relationships exist that are common-law relationships, or they're already married. They're established. They would meet our definition. They would have the exception. It would continue and then the young person would come of age.

Down the road, if Bill C-22 is passed, the message from Parliament is that anything over the age difference is an exploitative relationship; it's a sexual offence.

I don't know if you have specific examples. I don't have any to offer to the committee about how Bill C-22 might impact specific cases.

[Rob Moore, Conservative, Fundy Royal, NB]

Number one, 72 in 100,000 refers to common law and married. If we're talking specifically about married individuals, in the Yukon, for example, as a territory, no one under the age of 16 can ever get married. The age for marriage in the Yukon is 16. And as for the number of 15-year-olds, for example, who are legally married, according to Statistics Canada, in 2005, in all of Canada one male and four females were married. In jurisdictions like the Yukon, where the age is 16, no one under the age of 16 is legally married in the Yukon.

I think where there is a little discrepancy in the number is that this is the number of married; the 72 in 100,000 refers to people who would also be considered common law. So that's another basket of individuals, all of whom, I should say, are in a transitional exemption under Bill C-22. Anyone in that situation when this bill comes into force will continue to be allowed to be in that situation, but going forward, this bill sets the age of sexual consent at 16, with that five-year close-in-age exemption.

So if someone under 16 wants to get married, in this bill they're not prohibited from doing so. If they're allowed in their province to get married at under 16 in some exceptional circumstance or otherwise, this bill doesn't prevent them from doing that. But it does have a five-year close-in-age exemption. If it's within the five-year close-in-age exemption, there would not be any criminal fallout from that relationship.

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

The only point I would add, as Mr. Moore has indicated, is that there is something of this nature that exists in the United States. In many of the states there is a marriage exception. The exceptions that exist on a permanent basis have been criticized by many as being a way to excuse what is otherwise considered a sexual offence, where the laws of age of consent have been prescribed in a such a way that the accused can bypass them by entering into a married or common-law relationship, as Bill C-22 addresses.

The checks and balances exist within the provinces under their marriage acts dealing with solemnization, and in two provinces and one territory, no one under the age of 16 can marry. In the other ten jurisdictions they can marry under that age only with parental consent and on the approval of a court, for the most part, or in Ontario, Nunavut, and the NWT, with the consent of the minister responsible for marriages.

In each case, the criteria that are stated in their legislation are that it has to be expedient or in the best interest of the young person, or she's pregnant. In that consideration, the court would consider whether or not this consent would authorize what is otherwise prescribed as a sexual assault under the Criminal Code once Bill C-22 comes into effect. That's why Bill C-22 addresses the issue prospectively, so that relationships that exist at the time that Bill C-22 comes into force, be it a married relationship or a common-law relationship, an established one as defined, are protected, notwithstanding that Bill C-22 would otherwise have made it illegal because the partner is more than five years older.

If we look at what stats are available to tell us how often this comes up as an issue, it's true that the director for the Canadian Centre for Justice Statistics testified that based on their information, 0.07% of youth aged 15 years were in a married or common-law situation—72 people per 100,000. If we look at estimates from Statistics Canada for 2005 on youth who were age 15--one male and four females--who are legally married, we don't know the age of their partners.

So it is a very rare example of the question that I understand is at the heart of this amendment, and the provinces have the scope under their solemnization of marriage to deal with that within the scope of the close-in-age exception, and in three provinces never allow it.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Mr. Chair.

Just to be clear, the bill as introduced has a transitional marriage exemption, but the age of 16 is consistent. The federal government hasn't overall exercised its jurisdiction to set a minimum age to marry. In two instances, the Immigration and Refugee Protection Act states that any person under the age of 16 years will not be recognized as a spouse or common-law partner of a foreign national, and the Federal Law–Civil Law Harmonization Act also prescribes the minimum age as 16 years.

We really don't want to get into making exceptions in the future, as has happened in some other jurisdictions. I want to understand exactly what Mr. Comartin is getting at, but we don't want to make entering into some formal arrangement like marriage or some other partnership a blanket defence, or an excuse for violating the intent of what we're trying to do in Bill C-22. It sets the age of consent at 16 and provides a close-in-age exemption.

Some provinces have a lower age than 16 when someone can marry. Bill C-22 respects that. If a province sets the age when someone can marry at 15, Bill C-22 respects that, but the close-in-age exemption has to be in place. The close-in-age exemption we have set for 14-year-olds and 15-year-olds, for example, is five years. So in those jurisdictions where someone can marry at 15, if it's within five years there's absolutely no conflict whatsoever.

Going forward, in some cases it would be at the discretion of a judge. I don't know if Ms. Morency wants to expand on that.

Overall, the government doesn't want to create loopholes that will allow some people to get around entering into these types of great-in-age relationships, using the shield of marriage or a prospective marriage.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

NDP-4 is again on section 159, but as opposed to the prior two proposed amendments, both from the Liberals and from me, this deals very specifically with the age of 16 years. Again, although there is no reference in the primary bill, Bill C-22, to section 159, we are clearly dealing with the age of consent being fixed in this country, for all purposes with regard to sexual activity, at 16 years.

So again, Mr. Chair, if this amendment is not acceptable and we don't pass it, we're going to end up in this situation, which has been ruled by the courts, all the way up to the courts of appeal in the provinces of Ontario and Quebec, as being contradictory. We're going to be creating a real anomaly here, and it's not the way legislation should be drafted. The government has a real responsibility here, quite frankly, to agree to this amendment and to do it unanimously. This is a simple way of getting around the whole issue of the language that's in Marleau and Montpetit, which I find quite restrictive. At some point we should deal with that in a more global sense. That aside, this is one of the amendments to which, clearly, the government should be agreeing, and it should be going through unanimously both here and when this bill goes back to the House.

On that basis, I would argue that you should rule it in order. It deals specifically with moving the age to 16, as we are doing in the balance of the bill. There's no question that the focus of the bill is to establish the age of consent in this country as 16 for all purposes. I would say this is different from simply repealing section 159, and on that basis you should rule that in fact it is admissible.

[The Chair, Conservative, Art Hanger]

I appreciate your analogy, sir, because I too have executed a number of warrants, including drug warrants. I knew that even though there was something in plain view, I had to go back and get another warrant to seize any other items. That has certainly been substantiated in the court of law.

I don't know if there's any other comment, but Bill C-22 amends certain sections of the Criminal Code. This amendment actually proposes to change another section of the Criminal Code, section 159. Given the fact that it is dealing with another section, then according to Marleau and Montpetit, on page 654,

For a bill referred to committee after second reading, an amendment is inadmissible if it amends a statute that is not before the committee or a section of the parent Act unless it is specifically being amended by a clause of the bill.

I must therefore rule the amendment inadmissible.

Ms. Jennings.

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

In light of the fact that the basic objective of Bill C-22 is to prevent young people of less than 16 years of age from consenting to sexual activities, since the current legal age of consent is 14, it does not make sense that a particular sexual activity should continue to be illegal. In that case, setting the legal age of consent at 14, as does the current Criminal Code provision, or at 16 if Bill C-22 is passed, is nonsensical. The objective of the bill is to set a legal age of consent, an age of protection. But we would be excluding a particular sexual activity from that protection threshold. I think that this falls, as we say in English,

within the scope of Bill C-22, and I would hope the chair would rule to that effect.