Evidence of meeting #59 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was young.
A recording is available from Parliament.
Conservative
Rob Moore Conservative Fundy Royal, NB
We have an age of consent now; it's 14. We've heard that there are always going to be challenges when you have a “line in the sand” type of thing. We're raising it to 16, and the close-in-age exemption is five years. Does the CBA have any comment? I know you say the support, the close-in-age exception—On that close-in-age exception, should it be larger or should it be smaller?
If there's time, anyone else can comment on whether the close-in-age exemption should be greater than five, less than five, or if five is a good, approximate—that takes into account the intent of this legislation. It is not to criminalize young people from having sex, but to prevent older people from victimizing young people.
Branch Section Chair, Sexual Orientation and Gender Identity Conference, Canadian Bar Association
I appreciate that the question was directed at me, but Ms. Gallagher is more an expert on the criminal issues, so I'll defer to her.
Treasurer, National Criminal Justice Section, Canadian Bar Association
Thank you.
Certainly the close-in-age exemption is essential in the CBA support. We are satisfied with the five-year exemption; we feel that it is realistic and it is fair.
Conservative
The Chair Conservative Art Hanger
Thank you very much.
Did someone else want to respond to that point?
Ms. Mackinnon.
Executive Director, Justice for Children and Youth
If I might point out, there are lots of kids in the same secondary school who are five years apart. I think it's important to know that especially people coming from different countries and different education systems may arrive at different grade levels and they may think of themselves as social peers, though chronologically they may well be five years apart. Again, that's the reason we suggest, as opposed to a hard and fast age rule, that it merely be a rebuttable presumption.
Liberal
Larry Bagnell Liberal Yukon, YT
Thank you.
I'm only going to be about 30 seconds, and then I'll let Mr. Lee have the rest of my time.
I wanted Judy Nuttall to know that her organization is very effective. I'm from the farthest riding from Ottawa. I have all these ribbons and the big banner from the Catholic Women's League of Canada of Whitehorse, Yukon. I always want my constituents to know they've been heard, so they've been heard here in Parliament.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you.
I'm reading Bill Mooney's ribbon.
I have two quick questions and they're back on the subject I had left off on in my previous line of questioning. I support the bill, certainly I do, but I'm probing it here to make sure it's technically proficient in accomplishing the result.
The first question follows up, and it's to Ms. Gallagher. If a court were to find, on an individual basis, a constitutional defence in the way that I described the last time, essentially based on a charter and a real relationship between let's say a 15-year-old and a 21-year-old, outside the five-year exemptions, would that decision undermine the whole law? Or could it just be done on an individual basis, based on the existence of what the court felt was a real relationship? That's the first question.
Treasurer, National Criminal Justice Section, Canadian Bar Association
Perhaps I misunderstood your question earlier. I had taken you to mean a presumption beyond the close-in-age exemption, and I just wanted to correct that.
I don't know the answer to that question. I do know that in the past, based on past law, what we have agreed to would pass constitutional muster, we believe. You're asking something that obviously needs further discussion. And the nature of the presumption would vary, if it were to be a presumption of a relationship with greater than the close-in-age exemption.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
My point was that using a presumption technique might save us from the problems of the rigidity, and that's the point Ms. Mackinnon had made.
Treasurer, National Criminal Justice Section, Canadian Bar Association
Again, thank you for the opportunity to clarify that. Certainly we stand by our position.
Liberal
Treasurer, National Criminal Justice Section, Canadian Bar Association
We take no issue with the close-in-age exemption as proposed.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Okay, that's it. Gotcha.
In terms of sexual assault, the general provision involving sexual assault and the age of consent, I realize there are other sections of the code dealt with in this bill that will provide additional protection to 14- or 15-year-olds, but strictly in relation to the sexual assault provision, from where we take this consent. That's why we're using the consent concept; that's where it comes from, because in the other sexual offences, consent is not an issue or not usually an issue, so the sexual assault section deals with and involves a complainant. You have to have a complainant of that age. In the event we don't have a complainant, in the event 14- or 15-year-olds say they are not complainants, regardless of what you say, this is a real relationship, and they are not complainants. My question is, does the whole protection fail for those 14- or 15-year-olds if they say they are not complainants? The section does use the concept of complainant.
Treasurer, National Criminal Justice Section, Canadian Bar Association
Yes, it does, and by definition in the Criminal Code, a complainant and a victim are the same.
To answer that question, that's a decision a court would have to make.
Liberal
Treasurer, National Criminal Justice Section, Canadian Bar Association
As to whether....
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
To your knowledge. If an individual says they are not a complainant, there's no case.
Treasurer, National Criminal Justice Section, Canadian Bar Association
Certainly the state of the law—All that is changing here is the age of consent. The notion that somebody who was under the age of consent could, under existing law, come in and say they were not a complainant hasn't changed.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Because the section doesn't refer to a person of that age. It says “a complainant”.
Treasurer, National Criminal Justice Section, Canadian Bar Association
I understand.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
If the individual says they are not a complainant, do they therefore lose the protection of the law, because they want to lose the protection of the law?
