Justice Committee on March 21st, 2007

[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 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]

Thank you, Minister.

Now to questions. Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Chairman.

Welcome, Mr. Minister.

My party supports fully the concept behind this legislation, and we'd like to deal with it as quickly as we can. I have a couple of really technical questions.

One of the problems or challenges facing this type of legislation is the need to build in these exceptions for close in age, the problem with marriages and common-law relationships, and the fact that we prefer not to have the Criminal Code regulating non-typical social relationships. In any event, we do want to target predatory behaviour.

Now the technical questions. It's great to see you have an adviser from your department.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Is that what you're going to say?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Exactly. I'm sure you could do it.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm pleased to have her with me.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

But I know you'll probably turn to your right when I ask these very technical questions.

The way the bill is drafted, as I understand it, the married and common law exemption is only transitional. Therefore this bill will effectively prohibit a marriage between a 15-year-old and a 22-year-old, unless there's going to be a platonic relationship of some sort. Let me just throw out that hypothetical case.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's correct.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Has that been addressed constitutionally? If we are effectively prohibiting a marriage, does that disturb any of the provincial partners in the justice system?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't know of any provincial partners that would be disturbed by that, Mr. Lee. But it goes to the essence of this bill, which is to prevent that kind of activity and protect children 14 and 15 years of age, just as it would be prohibited right now at the age of 13. We're just moving that age up by two years.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I'm suggesting this will effectively prohibit the marriage of a 21-year-old and a 15-year-old.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Exactly.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

But it won't technically do it. If the marriage laws allow them to get married, they'll be able to get married. The only problem is that the wedding night may be a little bit different.

[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.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

So even if a court provided an order that allowed the marriage of persons who were not close in age, the court order would effectively allow something that would become a criminal offence.

I'll just leave it there, because I realize there's no answer to it.

[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.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

My scenario would have involved a 21-year-old and a 15-year-old or a 14-year old, but I see the difficulty. I'm just pointing out a technical problem.

Second, the close-in-age exemption, or where parties are not close in age, refers also to the concept of dependence—where there is not dependency. But if a 19-year-old adult marries a 15-year-old, you may well have dependency, so the dependency removes the exemption. The existence of a dependency turns this into a criminal offence, and I don't see where being married removes the criminal offence if there exists a dependency.

Could you put me at ease and explain how a male who supports a 16-year-old—they are married or common law, but there is dependence, and dependence takes away the exemption?

[Carole Morency]

Section 153 of the Criminal Code already provides a prohibition against sexual activity with a young person between the ages of 14 and 18 where there is a relationship of trust, authority, or dependency. From the last Parliament, former Bill C-2 broadened that to look at the facts and situation of each case.

In that context, the provision has been in the Criminal Code since 1988 with the reforms brought in by former Bill C-15. In that context they are looking at the nature of the relationship. An example is dependency where the other person is basically exploiting the vulnerability of the younger person for a sexual exploitation purpose. Dependency in that sense is a bit different from what we understand it to be, for example, in a family law context. But it is well understood within the criminal law context in section 153.

[The Chair, Conservative, Art Hanger]

Thank you.

Thank you, Mr. Lee.

Madam Freeman.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Good morning, Minister.

First off, I want to say that I agree with you that protecting our youth is a goal we all share. However, the means to achieving that goal may differ. I believe that sex education is undeniably one way of truly protecting teenagers from being sexually exploited.

Education informs children and teenagers about their responsibilities in terms of their sexuality, whether it be about STDs or unwanted pregnancies or about how they can protect themselves from unwanted sexual relations or exploitation.

Earlier, you shared some statistics with us. What needs does the bill introduced by your government aim to address? Have other more detailed statistical studies been done on the number of exploitative and non-exploitative relations where the proposed age difference is either a factor or not. Are cases of teenage sexual exploitation increasing? Do you have that kind of information to share with us? I'd like to hear the statistics on this. The figures you gave us show that young girls between the ages of 14 and 16 are the most vulnerable. That doesn't tell us what needs this bill aims to address.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm sorry you don't think it does, Madam Freeman. It seems to me that the statistics I quoted are very specific that this is an age where young people are quite vulnerable, and a pretty solid argument can be made. I think we're just bringing this country in line with where a number of countries have gone.

You may be interested to know that the United Kingdom has put the age at 16. In most Australian states and many American states it's 16 at least. It seems to me that in a modern society it's inconsistent, and there's a gap in the law when 14-year-olds can be preyed upon by 40-year-olds. Even if the statistics show there are not that many 25- or 35-year-olds who are exploiting or taking advantage of young people, nonetheless there's a pretty solid public policy argument for raising the age to 16.

The statistics I quoted may not convince you there is a need, but I think there's a pretty solid public policy rationale for protecting 14- to 15-year-olds.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

According to the figures that you presented to us yesterday, most cases that come before the courts are thrown out. Can you explain why that occurs? Only about 10% of cases involve assault. Yet, according to the statistics presented yesterday, in 2003-2004, 62% of the charges were stayed and 59% were dropped.

To what do you attribute this state of affairs?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think, Mr. Chairman, that one of the things this bill does is clarify the law so we know exactly what we're talking about. No longer would there be any doubt as to the ages and the age limits and the type of activity we're talking about. I mentioned, Madam Freeman, that the laws of 20 years ago were very complicated in terms of what sexual activity was being prohibited, and it seems to me that we modernized it then and that we've clarified the law.

I think crown attorneys and police officers right across this country will tell you that these types of cases are very difficult to move forward. Nonetheless, I think it's incumbent upon us to take every step possible to make sure the law is clear and that there's a rational public policy framework for the enactment of that law. Of course, our job is to support those institutions in society. We don't do it just by changing the law.

I mentioned Cybertip.ca, which is an important tool in making sure that the exploitation of young children isn't covered.

I note that the budget we just announced puts in an additional $6 million for the protection of children in order to strengthen current activities combating the sexual exploitation and trafficking of children. Of course, you would know, at the provincial level, that this is a concern for provincial and territorial governments across this country. I know they have programs to intervene and to assist in this particular area. I think there's a wide range of activities and support for this.

But I, for one, wouldn't underestimate the challenge in moving forward. Sometimes individuals are reluctant to come forward with accusations of this type. Nonetheless, it seems to me, in my years as a lawyer, that the criminal justice system has become more sensitive. The provisions that have changed—for instance, on witnesses testifying, removing inquiries into the backgrounds of the individuals, and that sort of thing—I believe, are steps in the right direction and help facilitate the protection of young people that we're trying to achieve.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Freeman.

We'll go to Mr. Comartin.