Justice Committee on March 29th, 2007

[Prof. Daphne Gilbert]

I don't think it's always preying, but I do think it's always unconventional. It's always something you'd want to take a second look at as a parent, but I'm not sure you'd want your criminal law to be dealing with the specific issue of capturing an extra two years of teenage girls' sexuality. I keep coming back to the fact that this is primarily a law that's going to end up regulating the sexuality of teenage girls, because they're the ones who are going to be captured by this additional two-year age-of-consent issue.

You asked the question about whether we should lower or have no age of consent. No, clearly we wouldn't say there shouldn't be any age of consent, but raising it by two years isn't just a simple administrative matter. I think it has very real social policy implications. It's not just a simple administrative question of bumping it up a couple of years.

[The Chair, Conservative, Art Hanger]

Thank you.

I'm going to have to close this part of the debate off here.

I'm going to go to Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I'd like to ask two questions.

First off, I'm quite pleased to hear your testimony and I thank you for having taken the time to meet with us.

However, I must admit I'm of a liberal bent when it comes to having an open mind. I believe that those who stand opposed to this bill have not given us very compelling arguments. Obviously, I'm not denying that young people who are 13 or 14 may show great maturity. However, when we legislate, we do so for society as a whole.

I'd like to get back to the constitutional aspect, because it is interesting.

I have a hard time with the argument according to which if we set the age of consent at 16 in a bill, with the close-in- age exemption which you are aware of, it could lead social workers, health care professionals or teachers not to provide information on sexual health, hygiene or protection.

It isn't easy for 13 or 14 year olds to talk about their sexuality. I understand there may be some taboos and some prudishness. Several members of the committee referred to sex education, and I agree with that. However, I don't think it is unreasonable that at 16, we consider that, except when it comes to teenagers exploring their own sexuality, there should be some type of a framework.

I would like you to expand a bit on what you were saying regarding this bill possibly making those who need information and those who must provide it more vulnerable.

Make sure your comments are brief and punchy, as though you were trying to impress your date, because I have a second question for the professor from the University of Ottawa.

[Andrew Brett]

I'd just like to point out the one statistic we mentioned in our submission, which was that young women in the United Kingdom who are under the age of consent are six times more likely to say that they are too afraid of being too young to seek help for sexual health information and education. I think that's proof right there that young people under an increased age of consent will be less likely to seek out help.

[Réal Ménard, Bloc, Hochelaga, QC]

With respect, you will agree that this is not a very conclusive argument. I can understand that people may be shy, that we need to encourage parents to teach their youth to feel comfortable with their sexuality, but the purpose of this bill, it seems to me, does not quite fit with the argument you've just put forth.

If you'll allow me, I have a question for the professor from the University of Ottawa.

I am a student at the civil law faculty; I'll be finishing this year and I look forward to it. I hope you're not the type of professor to give your students a final exam that counts for 100% of their mark. But that is another question.

I'm concerned about incompatibility. Unlike Mr. Moore, I think it is something we need to look at. Before we pass legislation, if we have reason to believe there may be some encroachment into provincial and territorial areas of jurisdiction, specifically with respect to marriage and to age-related conditions, I would like you to clearly point to any potential problems of incompatibility.

Would you go so far as to postpone the passage of the bill until we hear from constitutional experts as to the way in which it may potentially be incompatible with provincial areas of jurisdiction?

[Prof. Daphne Gilbert]

I promise I won't pass any news to the civil law section with respect to your grades.

The constitutional question I think comes down to dealing with the province on what their reaction would be to the age of marriage issue that is raised. For me, the issue is looking at the places in particular where marriage is permitted at the age of 15 to find out if there's a justifiable reason why the territorial governments allow marriage at age 15. Across the rest of the country in the provincial jurisdictions the marriage age is 16, with permission to marry younger in special circumstances. The key when you get to provincial regulation of marriage is to know that the provinces are doing it based on local conditions and that's why we allow them to have control over rules around solemnization. Marriage is a local, community, and social value, and may change across the country and in the northern communities and may have very different implications depending on where you live.

I take Mr. Moore's point that perhaps only a small fraction of marriages actually happen between teenagers, but on the books at least you have a conflict. For those teenagers it might be a very significant conflict and it might be a life-changing conflict. In particular, where you have an express age limit of 15 it bears questioning why, in those northern communities, for example, it's felt that this limit is relevant.

[William Trudell]

Mr. Ménard, may I respond to this too?

There could be all kinds of cultural issues, but I see, without any doubt, a constitutional problem here. That's why, when I was trying to make my comments, I talked about the rights of the individual as being very important. If one party is saying that the province is right, and the other party is saying no, the feds have the right to prosecute, the judge in the middle is probably going to decide on the individual rights of that person who's affected. It's something I'm really glad to hear Professor Gilbert talk about, because I think it's a real concern in terms of how sophisticated somebody is at 14, and what rights they have in one province as opposed to another region.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you.

[The Chair, Conservative, Art Hanger]

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Thank you all for coming. I was pretty positive about this bill, but you've raised some concerns I hadn't thought about. I'm glad you've come as witnesses.

As the only member from the territories, I want to ask about the constitutional question in relation to the territories. Although you should know that the Yukon government is onside with the bill, it raises the issue that we haven't had any witnesses from the territories, especially those groups that might explain whether or not the social mores are different there, why the ages are different, and what their thoughts are on this. I have to give second thoughts to having more witnesses.

Nicholas and Andrew, I'm very glad you're here. I'm a little upset you used my speech, because I was going to say it's adults making this legislation. We haven't had 14-year-old and 15-year-old youths here to give their opinions. We're legislating for them.

On the constitutional issue, if we put in an exemption that said notwithstanding the age in the province, it would only apply up to the age that would make it legal. In the three territories, for instance, this wouldn't apply for 15-year-old youths because they're allowed to be legally married. Would we then have another constitutional problem because people across Canada weren't treated equally?

[Prof. Daphne Gilbert]

Yes, you would. You'd have a very significant problem, in that when the federal criminal law powers envisioned it, it was a power that uniformly applied to the entire country.

I think you'd immediately get a challenge that this law is not in fact about criminal law, but it's about social morality issues. If it's not uniformly applied, it raises the issue of it not actually being a criminal law regulation, as granted by section 91.27 in the Constitution.

I think the court has been pretty clear that criminal law has to be uniformly applied across the country, and that's not to mention Americans coming up to Canada looking for safe havens. I don't think you'd want the rest of the country going up north looking for safe havens either.

[Larry Bagnell, Liberal, Yukon, YT]

I want to put the Department of Justice on notice to give us an answer on that. The Department of Justice always says they've checked a zillion times on whether or not something is constitutional. I'm sure you'll get us a response on that question.

Nicholas and Andrew, you didn't get a chance to answer the question that Mr. Moore asked. I'm not sure the question was very fair when he said 14 and 40, because this law is about 15-year-old and 22-year-old persons. But in relation to Mr. Moore's question, did either of you want to answer that?

[Andrew Brett]

I think in response to a very emotive question, I'd like to give a very emotive answer.

Nicholas is 18. I'm sure a lot of people would be disgusted if a 70-year-old person hit on him, but it doesn't mean it should be against the law. That's all I'm saying in response to that question.

[Larry Bagnell, Liberal, Yukon, YT]

In an effort to get more of a voice for youth, is there anything you haven't had a chance to say from the youth perspective?

We haven't heard from many youths yet. I don't know how big your group is. Are your views representative of a large proportion of youth? There were some references that adult witnesses made previously that suggested there were a number of youth who would support this bill.

[Nicholas Dodds]

It's a very hard question to answer. Of course, I unfortunately haven't conducted a poll of all of the youth in Canada. I would like to do that, but it's kind of impossible.

I think there are some youth who would support this bill. I believe there are other youth who would not. I know there is a significant proportion of youth who believe they're trod upon every day by the so-called democratic process, and there are other youth who have implicit trust in it. I think a significant number of youth in Canada believe they're being legislated against without any consultation whatsoever.

I believe we're here to try to equalize the fact that we haven't actually heard from any youth of 14 or 15 years old. We're here trying to equalize it. I think we bring some opinions that those youth hold, although I can't say I speak for them all.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Trudell.

[William Trudell]

One of the things you find when you practise criminal law and represent young people is that they live in their heads and don't communicate a lot. That is probably the natural part of being a teenager.

I'm really delighted to hear Mr. Dodds and Mr. Brett, because they voice low-level concerns we had about not having this legislation interpreted by youth that it's not to protect them; it's to sort of legislate against all the pressures and choices they have to make.

It's so hard to get young people to open up to us old people—sorry, I didn't mean us—so I think that really should be kept in mind. I imagine a lot of young people don't understand the system and what we're doing here. They would interpret this as, “Wait a minute, I can turn on the television and see it, but you're telling me I can't make a choice”.

I think it's an interesting caution that we might keep in mind.

[The Chair, Conservative, Art Hanger]

Christina.

[Christina Godlewska, Articled Student, B.C. Civil Liberties Association]

Thank you.

I think we need to keep in mind that we're not talking about the age of approval; we're talking about the age of consent. Consent is a very basic act, and we're saying we don't want 14- to 16-year-olds to have the ability to have the legal capacity to consent at all. What follows from this is that a 15-year-old who represents herself as being over 16 and presents fake identification is acting in an unconscious fashion. They don't understand at all what's going on.

Perhaps from an adult perspective there are perceptions about teenagers engaging in risky behaviour. We've heard that some teenagers regret their decisions, and we might want to protect them from that. But we have sociological evidence, and studies show that teenagers perform on par with adults when considering the costs of risky behaviours. I can provide the citations for anybody who is interested, and we have a position paper that will be online shortly. Another study examined the common perception that adolescents feel invulnerable to negative outcomes of risky behaviour, and that perception was not supported.

So we think we're protecting teenagers from themselves here, but the truth of the matter is that if we're going to give teenagers a kind of autonomy and want them to act as autonomous adults, the way to do it is not to say anybody under 16 can't make the most basic of decisions for themselves under any circumstances.

[The Chair, Conservative, Art Hanger]

Thank you, Christina.

Ms. Freeman.

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

Well, the debate certainly is going off in another direction this afternoon. I thank Mr. Bagnell for his question.

Thank you, Mr. Brett and Mr. Dodds, for having come here today.

It is true that the bill concerns youths and that there is no mechanism set up to consult them, which is unfortunate.

What would have been the best way to meet with young people on this subject? There are no groups representing young people between the ages of 14 and 16.

[Andrew Brett]

The very fact that this bill was brought forward by adults and not by youth seeking help or protection indicates it was a paternalistic move in the first place. If you wanted to present that bill and seek youth approval, there are many youth groups across the country. In Toronto alone there's the Toronto Youth Cabinet, and youth agencies. Many of these groups are already against this bill. If they had been consulted, I believe the justice committee would have learned this.

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

Thank you.

Ms. Pate, various witnesses testifying before us on this bill mentioned the difficulty young people may have in consulting their doctor, and the issue of confidentiality. Could you expand a bit on that? I also wondered about this and I wonder whether raising the age of consent would deter young people from going to see their doctor. That is a problem to my mind.

I should add, Mr. Brett and Mr. Dodds, that I am the mother of a 14-year-old. So, I know to what extent young people clam up: they don't talk. That said, it is true we did not consult them. I'm sorry about that. However, I wonder from a medical point of view, what adverse consequences there might be. Could you expand on that a bit?

[Kim Pate]

I'm sorry, my French is not—

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

You can answer in English, if you prefer.