Justice Committee on March 21st, 2007

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

Thank you, Mr. Minister, for being here.

Thank you, Mr. Chair.

Mr. Minister, I think you know that I have three concerns, one that's already been raised by Mr. Lee on the constitutional question. Although I accept, generally, Ms. Morency's analysis, it is making the assumption that the provinces would have to back off from the federal jurisdiction, and I'm not entirely convinced that's the case. That's my first concern.

Then I have a concern that you've not included: an amendment to section 159.(1) of the Criminal Code that lowers the age from 18 to 16 for anal intercourse. This is clearly discriminatory and has been found to be so by a large number of our courts, in spite of which we are still having charges laid under that section. In that regard, my statistics show that in 2003-04, there were 78 charges laid. There were only two convictions; all the rest were acquittals. I have to be suspicious that the section is being used as a harassment, probably exclusively, against the gay community in Canada. So I'm very concerned about that not being included.

Finally, I'm concerned about this legislation where you have a relationship between a couple in excess of the five years and there's an issue of sexually transmitted disease and the young person in the relationship refuses to get care out of fear of having to disclose the name of the other one. That issue is not addressed in this legislation.

Having said all that, Mr. Minister, what I'm more concerned about today is that I see a motion coming before the House tomorrow that is going to usurp the function of this. I think this committee is entitled to know, first, whether your government is going to support that motion, and second, whether you are going to implement it and just take this issue away from us. If you are, we might as well just close our files and go home right now.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think you've touched on four different issues.

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

Can you address the last one?

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's right, we might all be out of here. Is that what you're thinking?

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

Well, I might as well. There would be no use in answering the other ones.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'll have a look. I've just been informed that it's justice related and that the Liberal Party wants to expedite four bills. They don't include Bill C-10, the mandatory minimum bill. It doesn't talk about dangerous offenders. But I'm always interested in any procedure, anything that might expedite the passage of bills. Whether that can be done on an opposition day, or in fact if it should be, is something I will have a look at, and I hear your concerns on that.

We know the concerns of the Liberal Party in this area and perhaps the reasons they're coming forward, but again, I won't do anything in haste—

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

Their concern, Mr. Minister, is more political than it is with public policy.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I know. That's what I'm saying. I appreciate that. That's their rationale. You can appreciate that I'm looking for every opportunity that makes common sense and is within parliamentary procedure to make sure our justice legislation gets through, so I will have a look at it. I actually haven't received a copy of it, but I understand it has been tabled with the Clerk of the House, and I will have a look at it.

With respect to the constitutionality, Mr. Comartin, you're very experienced in this area. When there is an activity that Parliament has a legitimate concern in prohibiting or circumscribing, it is proper for Criminal Code jurisdiction under the Constitution of this country. I have complete confidence that raising the age of protection from 14 years of age to 16 years of age will pass constitutional muster.

The bill doesn't address section 159. It doesn't address a lot of different areas. It's not meant to address all sexual activity dealt with in the Criminal Code; it's very specific. It raises that age of protection for 14- and 15-year-olds, and that applies to all types of sexual activity that is not otherwise prohibited as an assault. It protects all children, whether heterosexual or gay, under the age of 16.

With respect to disclosure, you would be aware, of course, that there are disclosure requirements on health care professionals, and that if a 13-year-old, for instance, is being sexually exploited by an adult, there are reporting requirements. We're asking that the same reporting requirements apply to 14- and 15-year-olds, because as this legislation makes clear, we intend this to be a crime. The 25-year-old who is having sex with a 15-year-old can and should be reported. It's a criminal activity.

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

Mr. Minister—

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think that hit all four. You may have a follow-up, but—

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

I do, on two areas.

On the last point in particular, these are the current numbers as of the current census: in the 14- and 15-year-old category, there are 872,000 youth in this country; based on the best estimates we can get--and they're rough—as many as 13% of them are engaging in sexual activity with individuals who are in excess of that five-year gap. That's based on U.S. statistics, because we have none that are particularly valid. That statistic is not a very strong one, but we could be dealing with as many as 125,000 youth in terms of their relationships.

It's a much more significant number than the 12- and 13-year-olds, and of course the ratio of sexual activity in the 14- and 15-year-old category is substantially higher than it is among the 12- and 13-year-olds. So on the health issue, we're talking of a potentially much more significant problem of people stepping back and refusing to get treatment because they don't want to declare the names of the parties they are engaged in sexual relationships with, whether it's exploitive or not. They are just not going to do that, because they are not going to expose them to criminal charges. It's a much more severe problem than the one we're currently confronted with in regard to 12- and 13-year-olds. I make that statement.

Second, to come back to the constitutional issue, has there been any consultation with the provinces? They have been advised that if this legislation goes through, they're either going to be faced with court challenges to their marriage legislation or their marriage legislation is going to be struck down in this regard.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Comartin, I wasn't justice minister at the time this piece of legislation was introduced, but my understanding is that there were some inquiries by some provincial governments as to how it would work. To my knowledge, there is no objection at the provincial or territorial level with respect to this bill.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you, Mr. Minister, for being here today.

I want to especially thank you for placing the concerns of parents regarding their kids as a top priority on your agenda. Bringing this bill forward indicates some of the things I've been talking about for the 13 years that I've been here, and I'm very pleased to finally be able to address that with a minister of the Crown in order to get some changes made.

I also want to commend you on the $600 million addition to the budget to fight child exploitation. That's an indication to me that the things that need to happen are really going to happen.

I realize the technicalities that are being talked about. I was principal of a school for the better part of my life before coming here. I want to share with the minister that Mr. Comartin's figures that approximately 13% could be engaged in sexual activities at ages 14 or 15 could be fairly accurate. Compared to what I had to deal with in the school I was at for a number of years—it was a small school, but we had 14-year-olds and 15-year-olds, and I can name specifically five times where individuals of 14 and 15 were engaged in sexual relations with adults over five years older than themselves.

Each one of those situations ended in tragedy—I'm talking two or three years down the road, beyond the initial contact—devastating tragedy. They were children of friends of mine, so I know what I'm talking about regarding what it can do to families and to young people, what it can do. No, maybe it doesn't happen in every case, but I saw it, I felt it, and I was part of it. It has to stop. It just has to stop.

So I want some assurance. In every one of those cases that I mentioned in my particular situation, we tried to involve the police to remove the 14-year-old or 15-year-old from the situation. The police couldn't do anything; they were handicapped. Parents forcefully tried to move in and remove their children from those situations. Each one of them was charged with trespassing and, in a couple of cases, charged with assault for entering a premise, trying to bring their child out of something that they hated to see them involved in. Had they been successful, the tragedies wouldn't have occurred. That's why I think it's so important that we really address this seriously.

Will the authority be returned to the parents to have control over decisions made by 14-year-olds and 15-year-olds with regard to their sexual activities with people five years older or more?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, you certainly touched on a lot of different issues, Mr. Thompson. Certainly there has been an evolution in the thinking in this country. I think this particular change of provisions is actually overdue.

That being said, if you go back to the history of this country, go back to the time of Confederation, the age of sexual consent was 12. When the present Criminal Code, which is based on the English criminal code, was adopted and modified, the age of consent was raised to 14—in the year 1890. So I think most people would say that our views on when people become adults have changed. Certainly this is consistent with that.

So I think it's a step in the right direction to move it up to 16. Quite frankly, I think this is consistent with thinking—not just, of course, in Canada, but many other like-minded countries and jurisdictions have likewise sought to increase greater protection within the law.

With respect to involvement with others, school officials, parents, everybody of course has a stake in this. Parents of course have a huge moral and legal responsibility for their children. I'm quite certain that parents whose children may be subject to the type of exploitation we are talking about in this bill would welcome this, as would, I'm sure, school board authorities and teachers and principals.

So I think you'll find that this committee will bring widespread support upon itself, and the House of Commons, by moving forward on it.

[Myron Thompson, Conservative, Wild Rose, AB]

So would it be legal or illegal for a parent to decide they're going into a residence to remove their 14-year-old child from a situation they've already given consent to?

[Rob Nicholson, Conservative, Niagara Falls, ON]

You're giving me a fact situation. Everybody has a responsibility if a criminal offence is taking place—we have a moral obligation, as a society, quite apart from any legal responsibility—to protect that individual.

You'll note in my answer to the previous questioner that I believe there should be a legal responsibility to report those individuals—adults who are going after children—who run afoul of this legislation I'm talking about.

So yes, everyone should report that kind of activity. It's exactly what we are trying to prohibit in this bill.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you.

I have one more question, but I'll wait.

[The Chair, Conservative, Art Hanger]

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Mr. Minister, thank you for being here.

I'm relatively new in the legislative history of things, so I wasn't here when Bill C-2 was passed. I wasn't here when through various incarnations the then opposition asked for this type of legislation.

I refer you to the opening salvos of the former Minister of Justice, your predecessor, who in October of last year suggested that Conservatives have been asking for this kind of change in the law for years. For years, the former government—I guess that would be the Liberals—refused, basically stating that existing law was adequate to protect children.

Since that time, and correct me if I'm wrong, I think this bill has changed the Conservative philosophy that a close-in-age exemption was important. Again, correct me if I'm wrong, because you were part of that caucus and that criticism, but until the tabling of this bill there was no talk from any of the Conservatives about a five-year close-in-age exemption. I think you would admit that in the spirit of compromise and evolution—to use one of your words right back at you—that makes this bill quite palatable to the Liberal side, and obviously to the other parties who are supporting it, because it's balanced, it's reasonable, and it's workable. Heretofore that was not the position of the Conservative Party. That's my first question.

The second question I don't think was adequately covered in your response to one of Mr. Comartin's usual incisive questions. That has to do with the unconstitutional aspect that groups like Egale have brought up with respect to anal intercourse and the age of protection, if you like, of 18 years.

Again, I would draw your attention to the summary in your bill, and actually the preamble, which by the Interpretation Act should apparently be taken into consideration. The summary does not specify that this bill is homing in on exactly what you think it's homing in on. It talks about sexual activity and age. While we welcome this bill, to keep the scope of the summary and the preamble, can you tell us whether you plan to fix what I would call the lacuna, the gap, with respect to anal intercourse?

Thank you, Mr. Minister.

[Rob Nicholson, Conservative, Niagara Falls, ON]

First of all, with respect to the close-in-age exemption, it wasn't the responsibility of the opposition party to draft legislation. Certainly the opposition Conservatives were very vociferous in terms of asking that the government of the day address the question of 14- and 15-year-olds. If the close-in-age exception helps make it, in your words, “more palatable” to the Liberals, then I'm pleased about that. I think it's a reasonable amendment to have in this piece of legislation. Quite frankly, I think it strengthens the legislation, and I'm glad.

Hopefully this bill will get passed and it won't go the route of some previous pieces of legislation that have been introduced into this Parliament. I'm well aware of the fact that this is a minority Parliament and that basically none of our justice legislation can get through unless somebody steps forward and supports it.

Are you asking me if I was encouraged? I was encouraged in the last election when I heard that a number of these issues were important to political parties. So yes, I'd like to see progress made on a whole wide range of our justice legislation. Certainly this one is very important to the members of my political party, so yes, I appreciate any cooperation that we get in terms of moving the bill forward and hopefully receiving support.

With respect to your second comment on section 159 of the Criminal Code, I think I can paraphrase my predecessor by saying this bill isn't meant to cover all areas of sexual activity. There are a number—many, quite frankly—different sections in the Criminal Code that touch on sexual activity. This had a specific purpose, which was to raise that age of protection, move it from 13 to 14 and 15, to protect all 14- and 15-year-olds. I indicated that whether it's heterosexual or gay sex, they are protected under the provisions of this legislation.

I think it's a step in the right direction. Does it address every section in the Criminal Code that touches on sexual activity? It doesn't. It has a specific direct purpose. I think it's a legitimate one, and it should be supported.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

Good morning, Minister.

As you know, we support the bill, a priori. Unfortunately, you haven't given us much information. Everyone wants to protect young people from sexual exploitation. However, I would like to get a little more information from you.

First of all, how many offences are we talking about? How many charges of sexual exploitation involving young persons have been laid by law enforcement officials in recent years?

Secondly, you have neither confirmed nor denied the numbers quoted by our colleague Mr. Comartin. How many young persons are targeted by this bill? I know we're talking about approximate numbers, but can you confirm, or deny, the claim that 125,000 young persons will be affected by the bill?

Thirdly, the most important element is setting an age limit. What were the reason for selecting this particular age? Some people feel that it would be more effective if judges could determine the exploitative nature of the relationship and that less relevance should be assigned to age. How do you respond to that? Why was the age set at 16 years, and not at 17 or at some other number?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think Ms. Morency has some statistics on how many charges have been laid with respect to sexual exploitation.

On the statistics that Mr. Comartin quoted, I believe he extrapolated from American sources with respect to how many children at the age of 14 and 15 are sexually active. I believe he said there are a little over 800,000 Canadian children at the ages of 14 or 15. He extrapolated from there that there might be 125,000 children who are sexually active. That is not to say that a majority, or even a lot of that group, are in sexual relationships with somebody five or more years older than them. That would be going too far.

With respect to the rationale for the age of 16, I believe there is a consensus in Canada that the age of 14 is too low and that it should be raised. I quoted to you a number of jurisdictions that have justice systems somewhat similar to our own.

[Réal Ménard, Bloc, Hochelaga, QC]

I see.