Justice Committee on March 29th, 2007

[Margaret Gallagher]

But then that becomes an issue for police and crown and discretion in the eyes of the authorities.

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

Yes, but we're trying to impose protection here. If the person on whom we're trying to impose the protection rejects his or her circumstance as a purported complainant, have we lost our protection? Do you understand my question?

[Margaret Gallagher]

I understand your question, sir.

The CBA understands that children, young people, are sexually exploited, and there is a need to protect them. We feel the existing law has done so, and effectively the new proposal isn't going to change the mechanism by which that is done. It is changing some of the logistics of it in the sense that the numbers have changed. It will catch a different number of people. But the actual functioning of the law, as I understand the law, has already been found to be sound, and the CBA is not taking a position to argue that this particular mechanism is unsound.

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

Thank you.

[The Chair, Conservative, Art Hanger]

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I simply want to make sure that I understand this correctly. Otherwise, perhaps Ms. Mackinnon or the Canadian Bar Association could provide greater clarification.

What would be the advantage of having a presumption, which I would imagine would be rebuttable, within this bill, instead of a clearly established rule of law? As far as I'm concerned, it is the first I have heard of this. Am I right in thinking that you seem to be encouraging us to support a presumption rather than a clearly prescribed rule of law? If so, what would the advantage of that be? Did I understand what you are saying correctly, or did I misinterpret your comments?

I'll also have one other question, which will be brief.

[Martha Mackinnon]

You are understanding me correctly. I am saying that from the point of view of Justice for Children and Youth, a rebuttable presumption is preferable to an absolute rule, because we are all trying to prevent exploitation, and it's hard to get hold of, so we use age as a proxy, not because we actually know for sure it's exploitative.

In our view, the autonomy of young people must be recognized. Their individual rights—If they are not being exploited, if there is no exploitation, then it shouldn't be a criminal activity.

So we would prefer a presumption that would allow for young people who mature in different ways in different circumstances. Some have less emotional maturity and greater physical maturity. Some have greater intellectual maturity. They develop in different ways at different times, and if we're trying to get at the heart of their individual sexual relationships and not criminalize behaviour that was not exploitative, not manipulative, not part of a power imbalance, then that is denying the autonomy of the younger person.

[Réal Ménard, Bloc, Hochelaga, QC]

Would the presumption be to the effect that if an adult has sexual relations with a 14-year-old, the relationship is exploitive? What would the presumption be, according to you?

[Martha Mackinnon]

The presumption would be that for what is now absolutely in the bill a prohibition—it's not actually five years, if I'm right, but less than five years, so four years plus 364 days—if the age gap is larger than that, one would presume there is sexual exploitation.

It is only through evidence, whether the evidence is found through the non-complaining young person, or wherever the evidence is found—in journals, in the observations of others—That can be tested by a trial judge. In our experience, trial judges are very good not only at knowing whether people are lying—that's more straightforward—but they can detect whether someone actually is being manipulated.

[Réal Ménard, Bloc, Hochelaga, QC]

Do I still have some time? I do not want to go over my allotted time, Mr. Chairman.

It depends whether we're dealing with a legal presumption or not, but presumptions can hold pitfalls when you look at the way the law works. I think that for the Canadian Bar Association representatives, especially if we're dealing here with a rising star and someone who is particularly brilliant as Mr. Moore said at the faculty, there are various types of presumption. It is the first time I've ever heard of this. I would need to think about it further. It may be worthwhile, but rebuttable or non-rebuttable presumptions may give the Crown certain options or not. Once we read your brief, perhaps we'll understand this better.

If I still have some time, I'd like to ask you one last question. Otherwise, I'm in your hands, Mr. Chairman.

None of the witnesses have explained this to us... I will be 45 in May. In my cohort, when I was 14, 15 or 16, early sexual relations were rather more the exception than the rule. But we see the statistics today. Perhaps it depends on a person's environment, their past history or whether they're good looking or not—I don't want to get into the various reasons why—but in your opinion, why is it that, from a sociological standpoint, young people are having early sexual relations? You don't have to name any names; I'm only appealing to your sociological experience.

[Martha Mackinnon]

And I certainly don't need to identify my own experience either.

I believe that the age at which young people first engage in sexual activity is fairly culturally based. Young people often do what their peers do. They often—

Well, here's an example that doesn't even occur in Canada. In refugee camps, you will find young people engaging in sexual activity and becoming pregnant at extremely young ages, in part to reproduce their tribe. There is something highly survivalist about reaching out and recreating those people who have been victims of genocide or other atrocities. That's the safest example, because we can all understand that one. We might not think it's the very best way for 11-, 12-, and 13-year-olds to be behaving.

The other thing is that young people, through nutrition and a variety of other things, are in fact reaching puberty sooner than they did many years ago. So there are a variety of reasons, some individual, some cultural, some physically developmental.

But the age at which young Canadians on average first begin to be sexually active is about 14. That, of course, corresponds to what, as of today, is the age of consent. It's in our brief. I can't remember, but it's 14.1 years for one gender—presumably that's girls—and something like 14.5 years for the other gender.

[Réal Ménard, Bloc, Hochelaga, QC]

Merci.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you very much.

First of all, I'd like to extend my congratulations to Mr. Gillespie on moving into this new position in the new battle taking place. And thank you for the six years of hard work in the area where you worked in Toronto. I'm well aware of how difficult it was for you and your staff over those years to deal with this evil thing of child pornography. I just want to extend our best wishes in your new work, and thanks so much for your past work. Nationally, your efforts have awakened a lot of people to the seriousness of this problem. You've done very well on that. So I congratulate you.

I have a short question for the people from Statistics Canada.

Ms. Barr-Telford, do you have any indication of how many 14- and 15-year-olds are living in a situation where they have given their consent?

[Lynn Barr-Telford]

A more specific definition of that is that we do have information on the proportion of 15-year-olds, for example, who are in a married or common-law situation, and it's 0.07%. So it's about 72 per 100,000 population. That's for 15-year-olds.

[Myron Thompson, Conservative, Wild Rose, AB]

Okay, but you're not aware of any 14-year-olds?

[Lynn Barr-Telford]

There were none.

[Myron Thompson, Conservative, Wild Rose, AB]

Okay, thank you.

In my years as a principal of a junior high school, I ran across five serious occasions that I can remember when 14- and 15-year-olds had moved out of their homes and taken up residence with an adult. In every case I dealt with, it was a female taking up residence with an adult male.

In my experience with that situation, I saw a very serious thing taking place, and that is how it victimized the family, the mother and the family of the child. I had no authority to do anything about it. The mom and dad who wanted to remove their child from that situation had no authority. The police could not act on their behalf.

You can only imagine what a parent could be living with at night, night after night, wondering what's happening with their 14-year-old daughter who's taken up residence with a 25-year-old male who has a constant flow of friends and parties and what not, how devastating that could be on them.

I'd like to ask Mr. Sullivan, have you any evidence of the number of people who are victimized, who aren't the teenagers, but mostly parents, in close relation to these people?

[Steve Sullivan]

I don't have any studies, but I can tell you generally, working with victims, that victimization goes beyond the immediate victim, whether it's sexual assault, sexual abuse, assault, or even homicide, that families are tremendously impacted by the suffering of their loved ones.

I can tell you, we deal a lot with families of homicide, and when the victim is a child, the suffering of the parents is incredible. It leads to breakups of marriage and breakdowns. I've known families who have committed suicide. So the suffering of one's child has a tremendous impact on families. I don't have any studies as evidence, but anecdotally, I'm sure there are studies out there that can speak to that issue.

[Myron Thompson, Conservative, Wild Rose, AB]

I'm sure if everyone just stopped and thought about it for a moment, these are children, 14- and 15-year-olds. They have a mother and a father. I have children, and I have to say that sometimes you worry yourself sick over some of the things they get involved in. But when you have no authority as a parent to do anything about it, that's just wrong.

In my opinion, this bill will help a great deal in removing that lack of authority, lack of ability to work with your children, your kids. That alone makes this bill very worthwhile, in my opinion.

Is there anybody who would disagree with that statement among the witnesses today? If so, speak up.

[The Chair, Conservative, Art Hanger]

It doesn't seem that anybody is disagreeing with you, Myron.

[Myron Thompson, Conservative, Wild Rose, AB]

Then I would suggest that when we look at it from the point of view that we on this committee are here to try to bring in some legislation that will reduce the number of victims, and everybody agrees that this will, then for heaven's sake, let's move forward and get the job done. It just makes good common horse sense.

Those five families resulted in three suicides and two family divorces, all because a 14-year-old or 15-year-old could make up their own mind and consent to such an activity. That's what caused it. Let's get rid of it. Let's pass this bill. Let's move forward and reduce the number of victims in our country. That's what our job is, and we're not doing a very good job of it when we allow these things to exist.

Thank you.

[The Chair, Conservative, Art Hanger]

Thanks, Myron.

I think for the most part, in the sentiments here at this table, it seems like there's a fairly broad consensus of support, with some exceptions.

I as a former police officer certainly recognize the anguish that parents go through in trying to recover a child from a really delicate situation and they're a 14- or 15-year-old. That's a pretty common theme, I know, among police officers.

[Myron Thompson, Conservative, Wild Rose, AB]

Just as a short comment, Mr. Chair, I couldn't believe the number of restraining orders issued to parents to keep them away from their own kids. That was amazing. That shocked me.

[The Chair, Conservative, Art Hanger]

I know. That's a reality, but maybe this will change it somewhat.

I think almost everyone has had an opportunity to ask questions, with the exception of Mr. Brown and Mr. Petit.

Mr. Brown.