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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.

On the agenda

MPs speaking

Also speaking

Paul Gillespie  Consultant, As an Individual
Lynn Barr-Telford  Director, Canadian Centre for Justice Statistics, Statistics Canada
Tamra Thomson  Director, Legislation and Law Reform, Canadian Bar Association
Margaret Gallagher  Treasurer, National Criminal Justice Section, Canadian Bar Association
Kevin Kindred  Branch Section Chair, Sexual Orientation and Gender Identity Conference, Canadian Bar Association
Judy Nuttall  Coordinator, Affiliated with Citizens Addressing Sexual Exploitation, White Ribbon Against Pornography
Steve Sullivan  President, Canadian Resource Centre for Victims of Crime
Martha Mackinnon  Executive Director, Justice for Children and Youth
Karen Mihorean  Assistant Director, Canadian Centre for Justice Statistics, Statistics Canada
William Trudell  Chair, Canadian Council of Criminal Defence Lawyers
Jason Gratl  President, B.C. Civil Liberties Association
Kim Pate  Executive Director, Canadian Association of Elizabeth Fry Societies
Andrew Brett  Member, Age of Consent Committee
Nicholas Dodds  Member, Age of Consent Committee
Dave Quist  Executive Director, Institute of Marriage and Family Canada
Daphne Gilbert  Faculty of Law, Common Law Section, University of Ottawa, As an Individual
Christina Godlewska  Articled Student, B.C. Civil Liberties Association

11 a.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Have you seen the argument raised in any other common-law jurisdiction? Would it be a constitutional bill of rights type of challenge to that near-age defence?

11:05 a.m.

Branch Section Chair, Sexual Orientation and Gender Identity Conference, Canadian Bar Association

Kevin Kindred

Off the top of my head, I'm trying to think of a situation where it has been raised. There are American cases—they wouldn't be precisely the same—on the availability of close-in-age exemptions for same-sex sexual conduct on the same grounds as opposite-sex sexual conduct, but that's not really the question you're asking. So no. I can't say there is no case, but I can't think of one.

11:05 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Mr. Comartin.

Mr. Thompson.

11:05 a.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

I think Ms. Mackinnon has something to add.

11:05 a.m.

Conservative

The Chair Conservative Art Hanger

Please reply.

11:05 a.m.

Executive Director, Justice for Children and Youth

Martha Mackinnon

I can't tell you of any studies either, and I certainly have no information about same-sex cultural norms. I can't tell you that. Again, I can tell you only the experience of our clinic. There I can tell you that many of our clients report more homophobic slurs, behaviour, and criticisms in the adolescent period, and therefore homosexual young people are more likely to seek intimate relationships outside of their school peers or where it is less known.

Now, I can't tell you what that necessarily means about age. I can tell you that Toronto created a specific school because so many LBGT young people were dropping out. While we would all wish that sort of bullying and homophobic conduct would stop, it's hard to root out. That community had a much higher dropout rate; therefore, a special safe school was created for them.

11:05 a.m.

Conservative

The Chair Conservative Art Hanger

Mr. Thompson.

11:05 a.m.

Conservative

Myron Thompson Conservative Wild Rose, AB

During the years I was involved with education from the middle sixties to the early nineties, I saw quite a few changes take place. The role of the school became broader and broader. The three Rs became less the emphasis, and we moved into all kinds of different kinds of social education—you name it.

I just have a personal feeling about it. I don't know if it was ever really analyzed fully, but a lot of the education that went outside the scope of the norm, which was traditionally the job of the parents or churches or other community organizations in regard to certain activities, never appeared to me to be all that successful. I was thinking of teenagers and drinking and driving, and how that didn't seem to have the impact that we would like to have seen when we brought it into the education program.

When this becomes law, there are two messages I want to see get out: the message to the would-be perpetrators that it's no longer acceptable and you'd better get it out of your mind that you're going to pursue 14- and 15-year-olds—I'm not sure how you get that message out, but it needs to be communicated loudly and clearly that this is no longer the situation in Canada—and also the education needs to get out into the minds of the 14- and 15-year-olds that this activity is no longer a choice because it's illegal. This law would make it illegal.

I'm just wondering, does anybody have any idea how this should be effectively handled by the education system? If not, maybe we'll figure it out together some day.

11:05 a.m.

Conservative

The Chair Conservative Art Hanger

No comments?

I have a question for the Canadian Centre for Justice Statistics.

In my experience, reporting these types of offences to police departments has certainly, as time has gone on, overburdened many of those child abuse units with complaints. And many of the complaints have been funneled off to child welfare or social services, and they were dealt with there. Do the stats that the Centre for Justice Statistics accumulates deal specifically with those particular offences as well as those that ended up on a police officer's desk where charges were laid?

11:10 a.m.

Director, Canadian Centre for Justice Statistics, Statistics Canada

Lynn Barr-Telford

The data that we presented and the data that we have with respect to the number of incidents comes directly from the police services, and they are those incidents that are reported to police. So if it's not reported to police or not reported by police, it's not reflected in the data.

11:10 a.m.

Conservative

The Chair Conservative Art Hanger

If they're reported to social services under any kind of arrangement between police departments and child welfare, do you receive those stats?

11:10 a.m.

Director, Canadian Centre for Justice Statistics, Statistics Canada

Lynn Barr-Telford

What we receive is what the police would send to us, so it's very difficult to ascertain what their decision is at that particular point in time. If it's an incident that is reported to police and it's reported to us by police, we receive it. So it is very much what is reported to us by the police services.

11:10 a.m.

Conservative

The Chair Conservative Art Hanger

Mr. Gillespie or Mr. Sullivan, can you make comment in reference to any of that chain, if you will, of information?

11:10 a.m.

Consultant, As an Individual

Paul Gillespie

Over the last several years closer relationships have been built between child care services, children's aid, and law enforcement. But there has not always been that mandatory reporting that if one reports to one, they have to tell the other. And I think that's still fairly consistent in Canada, that it's not consistent everywhere. Thus there's not always a guarantee that one is going to know everything. That's simply been a problem in the past.

11:10 a.m.

President, Canadian Resource Centre for Victims of Crime

Steve Sullivan

I don't really have anything more to add. I don't have any special expertise, but my understanding is similar to Paul's.

11:10 a.m.

Conservative

The Chair Conservative Art Hanger

Right. So apart from what may end up on a police officer's desk or on the reporting file, even the stats as they are noted and accumulated by the centre really don't reflect—So we have even less of a view of what's happening out there.

11:10 a.m.

Director, Canadian Centre for Justice Statistics, Statistics Canada

Lynn Barr-Telford

Let me add that at the very outset, as I've stated, our 2004 general social survey on victimization showed that among the population 15 and over, only 8% of sexual assaults were coming to the attention of the police. It is a low number of reporting.

11:10 a.m.

Conservative

The Chair Conservative Art Hanger

Yes.

11:10 a.m.

Assistant Director, Canadian Centre for Justice Statistics, Statistics Canada

Karen Mihorean

I can just add that from our court statistics, if at court it is diverted or referred to social services or another program, it appears as a “stay” or “withdrawn” in our court data. We can't say specifically where it was referred, just that if it is referred, it appears as a “stay” or “ withdrawn” in our court data.

11:10 a.m.

Conservative

The Chair Conservative Art Hanger

Okay, thank you.

Thank you very much, folks. That was a long session, and I think we received a lot of information. We really appreciate your attendance here at the committee. We have a lot to consider with the information that has been passed forward. Again, thank you for your presentations.

I will now suspend the meeting. We will reconvene at 12 noon. We'll see you then.

Noon

Conservative

The Chair Conservative Art Hanger

I call the Standing Committee on Justice and Human Rights to order with our continued discussion on Bill C-22, an act to amend the Criminal Code on age of protection and to make consequential amendments to the Criminal Records Act.

We had a fairly lengthy session this morning, and of course that discussion continues this afternoon. We have a substantial number of witnesses here to listen to, and I might just go down the order here for a moment.

With us today are, from the Canadian Council of Criminal Defence Lawyers, Mr. Trudell—it's good to see you here again so soon, Mr. Trudell; from the B.C. Civil Liberties Association, Jason Gratl and Christina Godlewska; from the Canadian Association of Elizabeth Fry Societies, Kim Pate; from Age of Consent Committee, Mr. Andrew Brett and Mr. Nicholas Dodds; from the Institute of Marriage and Family Canada, Mr. David Quist; and there is another noted person here, Daphne Gilbert, professor in the faculty of law, common law section, University of Ottawa.

Welcome.

We'll begin the presentation as the names appear on the agenda. I'll turn the floor over to Mr. Trudell.

Noon

William Trudell Chair, Canadian Council of Criminal Defence Lawyers

Thank you very much, Mr. Chair.

It's an honour to be here again. I promise I'm going home today. Actually, Isabel Schurman, who has done quite a bit of work on this, was going to be here today. I'm filling in for Isabel, although not very well.

When we first looked at this bill quite some time ago on behalf of CCCDL, our original position was that the age really didn't need to change. It didn't really need to be increased for protection, because the Criminal Code is really protective of those predator-type situations up to and including the age of 18. However, I'm not going to waste the committee's time, because quite frankly, others have decided that this bill has merit to raise the age. So my comments are going to be more generally based today.

When you make these changes, I think it's very important for you to take into consideration, if you can, the fact that we're talking about young people who are much more sophisticated, at least optically, much more mature, at least optically, much more involved in the world around them—by the media and the Internet, etc.—and much more aware of their rights than we ever were in my generation, a hundred years ago.

When we're dealing with this, we have to be aware that we have to respect young people's ability to make decisions. We want to protect them, but we have to respect their ability to make decisions for themselves. Make sure this bill doesn't oppress in a way that these young people go underground in relation to wanting to continue relations, revolt against their parents, and not get the help they need from the health services that are available, so that AIDS epidemics, etc., blossom as a result of this. When you're considering this, it's really important to look at the collateral aspects that may occur.

We are in favour of the section in relation to luring. I don't think there's any question. We have no comments to make in relation to that.

If the bill gets passed, the anal intercourse section is out there on its own. If there's a way in which you could bring it in so that it can take advantage of the other provisions—I think it's section 150.1 or something like that—you can have the five-year principle apply. Some may say it should go completely, but if that's not the case, it should be under the umbrella of the spirit of the rest of the sections. If you can bring it in, I think that would be very important.

There are constitutional issues that may arise, and some others have talked about them in relation to the provinces in terms of licensing marriage, and the federal government. Someone talked to me about the scenario of, for instance, a judge in the province allowing a marriage and the feds then coming in and charging that person because the relationship is beyond the five-year period. I think there would be a challenge to that, and the challenge I could see is somebody representing the individual—let's just say it's a young woman and a man—in regard to the young woman's rights. So we have to recognize that they have to be protected. These young people have to be seen to have a voice and this has to protect them, but in a way that doesn't take away a respect for their individual decisions.

The same thing applies, I take it, in terms of what we would have to worry about if it was necessary for a doctor to report a relationship that the doctor felt was abusive. We don't want that young person to not seek out the doctor, right? So there has to be a balance that we figure out here.

So our comment is that the bill in itself, in its spirit, is a good bill. Having decided that it is going to pass, we would ask that your attention be addressed to the more general concerns, so that we make sure these people who are going to be affected understand that the government respects their right to make decisions, but wants to protect them from criminal activity.

Our laws have gone a long way in terms of protecting people in those predatory situations. We're talking about consent here. Sexual assault, those kinds of offences, formerly rape, are still going to be prosecuted. We're talking about consent, and in that regard, we have to make sure that the result of the legislation doesn't create social problems.

The last thing I will say is that I heard one of the previous speakers this morning, as I was listening in, talk about a presumption of the five years, a presumptive abuse of relationship—that's the wrong word, but I think you know what I mean. To me, that makes a lot of sense and it might be something you might consider. What it would do is it would instill the message that this is a presumptive relationship that is against the law, but it would give the parties, the individual, a recognition that they can satisfy the court that it's not as it appears, that they are mature, that it is not something a judge needs to worry about.

Those are my general comments.

12:10 p.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Mr. Trudell.

Now, from the B.C. Civil Liberties Association, Jason Gratl and Christina....

March 29th, 2007 / 12:10 p.m.

Jason Gratl President, B.C. Civil Liberties Association

My name is Jason Gratl. I'm the volunteer president of the British Columbia Civil Liberties Association. My colleague is Christina Godlewska. She's the articled student at the B.C. Civil Liberties Association.

We'd like to begin by thanking the members of the committee for the opportunity to make representations, however futile it might seem at this point politically. Still, we value the opportunity to put forward some of our concerns and considerations with regard to Bill C-22.

I'll begin with a general comment expressing our concern that Bill C-22 represents a fundamental shift of policy and attitude toward sexuality. In 1992, the Supreme Court of Canada, in the Butler decision dealing with the definition of obscenity, signalled a fundamental shift from the legislation of morality to the legislation of harm. From that point forward, the legislature and the courts were to look for specific types of harm, not necessarily scientifically measurable types of harm, but analytically discoverable harm, such as attitudinal harm—changes in people's attitudes toward each other that are fundamentally anti-social, psychological harm to individuals.

The idea was to rationally connect appreciable types of harm to the type of legislative endeavour underway. To our mind, that commitment to legislating against harm rather than legislating morality is endangered or imperilled by the approach this committee currently seems to be taking.

The existing protections for young people are adequate, in our submission. The sexual predators who exist in the world need to be taken account of, and much has already been done to ensure that those sexual predators are controlled, punished, deterred, and so forth, by the existing criminal law. The committee is well familiar with the crime of exploitation, as well as the restraints placed on persons in positions of trust, power, and authority to refrain from sexual contact with minors. Those go a long way to ensuring that young people are protected.

What we haven't heard before this committee, to my knowledge, is evidence that there is a rampant social problem in relation to a differential age. It's not as though there are a lot of relationships that involve older people and minors. Our concern is that in the absence of some evidence of harm, the rush on the part of the current government to enact Bill C-22 is an unconsidered response to a moral objection, rather than a legislative response to harms that have been shown to exist.

On the change in age and the five-year close-in-age exemption, empirically speaking there's a world of difference between a 12- or 13-year-old child and a 14- or 15-year-old child. Fourteen- and fifteen-year-old children are much more easily mistaken for adults, especially in a festive context—house parties, clubs, and so forth—where there is some concern that people whose proximity in age is greater than five years might mingle. In our view, even if the age is raised to 16, some of those concerns could be answered by a due-diligence defence. That is to say, if an accused person took reasonable steps to uncover the age of the person with whom they intended to have sexual contact, if there's any doubt, that ought to be an adequate defence in law to this offence.

We are talking about drastic consequences to individuals who are convicted of sexual offences—not only potential penal consequences, but inclusion on sexual offender databases and registries. These are consequences that ultimately change a person's life from there on in, making that person subject to extra monitoring, extra prescription, and so forth.

The notion that a person should suffer these consequences, despite having taken steps to discover the age of the person with whom he or she intends to have sexual contact, is to our minds abhorrent and totally inappropriate. We urge the committee to consider adding a due diligence defence to those provisions.

The submission is to the same effect as the notion of a presumptively abusive relationship, which we would support. Sexual contact with a person younger than 16 ought to raise a presumption that a relationship is abusive, but the presumption could be set aside with appropriate evidence.

We're also concerned that the change in age for sexual consent could undermine the access children might have to information about reproductive health, contraception, and how to keep themselves safe when engaging in sexual contact.

We've seen an unfortunate decline in the United States on the commitment to provide information to young people. Especially if there's going to be a shift to legislating morality, we wouldn't want to see that shift take place in the area of reproductive health education as well.

Finally, we support the deletion of any difference in age for anal intercourse and sexual contact other than anal intercourse. We regard that on its face as discriminatory and contrary to the charter.

Those are our submissions.

12:15 p.m.

Conservative

The Chair Conservative Art Hanger

Thank you very much.

We now have to the Canadian Association of Elizabeth Fry Societies, Ms. Kim Pate.