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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

9:05 a.m.

Conservative

The Chair Conservative Art Hanger

I call the Standing Committee on Justice and Human Rights to order. Today is Thursday, March 29, 2007, and our orders of the day are our continued study 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 have an impressive list of witnesses today, I dare say, starting with one individual, Mr. Paul Gillespie. He's a consultant and former member of the metro Toronto police department.

The Canadian Centre for Justice Statistics is represented by Lynn Barr-Telford, director, and Karen Mihorean, assistant director.

From the Canadian Bar Association, we have Ms. Tamra Thomson, director of the legislation and law reform section; Mr. Kevin Kindred, branch section chair; and Margaret Gallagher, treasurer of the national criminal justice section.

We also have Ms. Judy Nuttall, coordinator of the White Ribbon Against Pornography; Mr. Steve Sullivan, of the Canadian Resource Centre for Victims of Crime; and Martha Mackinnon and Emily Chan, of Justice for Children and Youth.

We'll begin as the witnesses appear on the agenda.

Mr. Gillespie, you have the floor.

9:05 a.m.

Paul Gillespie Consultant, As an Individual

Thank you very much, Mr. Chair.

My name is Paul Gillespie. I was previously employed by the Toronto Police Service, where I was lucky enough to serve for 28 years. For the last six years of my duties, I was the officer in charge of the child exploitation section of the sex crimes unit, and I was very fortunate to be working with a tremendous group of individuals. The team did some great work in pioneering some of the efforts that are being used around the world today in regard to the online sexual exploitation of children.

Since I left the police service last June, I have been working with a not-for-profit group in Toronto that I helped to start, called the Kids' Internet Safety Alliance, or kinsa.net. Our mission statement is simple. We're simply dedicated to the elimination of the sexual exploitation of children on the Internet and in all related issues.

In my time as a law enforcement officer, and certainly in the child exploitation section of the sex crimes unit, we had a very talented group of young officers who were very sophisticated with technology. This allowed us to conduct intelligence investigations in very deep, dark areas of the Internet. Some of those areas are known as the “freenet” or the “undernet”. They are the bowels of the Internet and are basically impossible to trace. It is down there that we found the worst of the worst. Pedophiles would operate and conduct intelligence, refer members, pass on information, and teach each other. It was through these areas that the most vile of the pictures and movies that we are unfortunate enough to all now be aware of would enter the Internet.

We had officers specifically assigned to monitor chat rooms and news groups in this area, and to take the temperature of what was occurring around the world. On numerous occasions, members and pedophiles around the world would openly advocate coming to Canada and would explain to each other that one might be allowed to have sex with a 14-year-old child because it's legal. They did so often not to the dismay, but the wonderment and surprise of others around the world.

I have had the opportunity to conduct hundreds of presentations on safety issues, children's sexual issues, and sexual exploitation issues, to school groups, church groups, and public meetings, including one yesterday in Brantford. At some point in the meeting, I typically just ask everybody to raise their hand if they're aware it is legal for 50-year-old men to have sex with a 14-year-old child. To this day, most Canadians just don't understand it. When you lay out the facts, they're just most often horrified, understanding that if it happened to them, they would be mortified. They feel that the fact is, it can't be right. Luckily enough, and hopefully, if this legislation passes, I think it will be very good.

For the last four years, I've been working with Microsoft in relation to software that we developed, called the child exploitation tracking system. This takes me around the world as I work to have other countries accept this software, which will someday be a global network. In the last two years, I've been on six different continents and have spoken to officers in different areas. I'm keenly aware of what's occurring in those areas in regard to the computer-facilitated sexual exploitation of children, and this is first and foremost on everyone's minds.

The one common theme that I deal with, certainly from my peers in law enforcement and in government, is the fact that grown men truthfully should not be allowed to have sex with children. That's something I hope this legislation fixes.

Thank you.

9:05 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Mr. Gillespie.

Now we'll hear from the Canadian Centre for Justice Statistics, and Ms. Lynn Barr-Telford.

9:05 a.m.

Lynn Barr-Telford Director, Canadian Centre for Justice Statistics, Statistics Canada

Thank you for the opportunity to present to the committee, Mr. Chairman, data relevant to your consideration of Bill C-22. You have the presentation information with you.

We will present to you police-reported information on children and youths as victims of sexual offences as these offences are currently defined in the Criminal Code, and data on the processing by the courts of sexual offence cases.

Statistics Canada collects national data on the overall number of incidents of sexual offences in Canada that have been reported to police. Information on the characteristics of sexual offences reported to police—the age of the victim, the age of the accused, and the relationship of the victim to the accused—was available from a subset of 122 police services in 2005. While these subsets provide useful information on children and youths as victims of sexual offences, we must keep in mind that they are not nationally representative. Data limitations are noted on the various slide input notes.

First, let me begin by telling you what we know about the sexual activity of youth according to Statistics Canada's National Longitudinal Survey of Children and Youth, as of 2000-01, in which we asked youths if they had ever had consensual sex. We found that 5% of 12- and 13-years-olds, 13% of 14- and 15-year-olds, and 41% of 16- and 17-year-olds reported having had sexual intercourse. Among the sexually active 14- and 15-year-olds, 37% reported first having had sexual intercourse when they were 10 to 13 years old, and 36% when they were 14, with the remaining 27% at 15 years of age.

Before turning to what we know about sexual offences in Canada, it's important to recognize that given the secrecy that often surrounds sexual offences, they are the least likely offences to come to the attention of the police. According to the 2004 general social survey on victimization that covered the population 15 and over, only 8% of sexual offences are brought to the attention of the police. We suspect that reporting rates may even be lower for those younger than 15. At the end of the presentation, you'll find a supplementary slide on reasons for not reporting.

Turning to the second slide in the presentation, in 2005 there were about 26,000 sexual offences known to police. Among these, about 23,000 were sexual assaults, and just under 3,000 were other sexual offences, which included sexual interference, invitation to sexual touching, sexual exploitation, incest, anal intercourse, and bestiality. While we're unable to disaggregate the individual offences that make up the other sexual offences in our police-reported data, we do know from our court data that about three-quarters of cases of these other offences are sexual interference incidents.

Data from a subset of police services indicate that sexual offences are crimes largely committed against young women under the age of 18. Overall, in six in ten incidents of sexual violence, the victim is less than 18 years of age. As the slide clearly indicates, young women between the ages of 13 and 15 are the most vulnerable to being the victim of a sexual offence.

Concerning the age of the accused, for sexual assault and other sexual offences in which the victim is under 18, the accused is 21 years of age or older in about two-thirds of the incidents, and therefore outside the proposed age of exclusion. Young males aged 13 to 17 are at the highest risk of sexually offending. You'll also find a supplementary slide on age of accused at the end of the presentation.

While we cannot predict the direct impact of Bill C-22 on the number and type of sexual offences reported to police, we are able to look at incidents of sexual assault in which the victim is 14 and 15. There were 788 such incidents in which an accused was identified, as reported by a subset of 122 police services in 2005. We found that in six in ten of these incidents, the accused was 21 years of age or older; in about one-quarter of the incidents, the accused was 16 to 20 years old.

Our subset of police reported data allows us to look at the relationship of the victim to the accused when an accused can be identified. The majority of sexual offences against children and youth are committed by someone known to them, more often by friends and acquaintances, about 50% of the time. Just over one-third are committed by family and just over 10% by strangers. We know that when kids are younger they are more likely to be sexually victimized by a family member. As they get older and more socially interactive, they are most likely to be sexually victimized by a friend or an acquaintance.

Turning to slide 4, we can turn our attention to trends, and we're able to look at 16 years of nationally representative data on other sexual offences. We see that there's been an overall decline of about one-quarter in the rate of these offences between 1990 and 2005. Despite this overall decline, however, in three of the four most recent years there have been slight increases. This overall decline is similar to trends in violent crime rates, where we've seen declines throughout the 1990s, followed by relative stability since 1999. You willl also find, in supplementary slides, information on trends in sexual assaults.

We can offer some insights into the offence of luring that the proposed bill touches on. These data are also from the subset of 122 police services in 2005, and although not nationally representative, they do provide a general sense of trends for these offences. Between 2003 and 2005 there were 116 reported incidents, of which 44 were reported in 2005.

We can also speak to the processing of sexual offence cases. There are three things that can happen to an incident when it's reported to the police: it can be cleared by charge, cleared otherwise, or remain unsolved. In 2005, next to robbery, the charge rate for “other” sexual offences was the lowest among violent offences, at 37%. What's noteworthy is the 44% decrease in charge rates for other sexual offences between 1990 and 2005. This is significantly larger than the 22% drop in charge rates for sexual assaults and the 4% drop in charge rates for violent crimes overall.

Remembering that only about 8% of sexual assaults are reported to police, and, as I've indicated, that other sexual offences are among the offences least likely to be cleared by charge, once cases do get to court, with the exception of homicide and attempted murder, sexual offences are the least likely to result in a conviction, compared to other violent offences. Overall, 49% of violent offences are convicted. This compares to just 39% of sexual assaults and 37% of other sexual offences.

Although conviction rates for sexual offences are low, once convicted they are dealt with harshly. Rates of incarceration are higher for these offences than they are for overall violent offences. For example, overall, the rate of incarceration for convicted cases of violent crimes is 35%. In the case of each sexual assault and “other” sexual offences the rate is 45%. It is higher for homicide, attempted murder, and robbery.

We also know from our court data that someone convicted of a sexual assault or an “other” sexual offence is more likely to get a longer prison sentence than cases of physical assault, including major assault; and “other” sexual offences, such as sexual interference, invitation to touching, and sexual exploitation, get longer prison sentences, on average, than cases of sexual assault. In 2003-04, on average, a person convicted of an “other” sexual offence and who was sentenced to prison had a sentence length of 529 days. This was up 117 days since 1994-95. This compares to an average prison sentence length of 212 days for violent crimes overall, and of 466 days in the case of sexual assault. Only homicides, attempted homicides, and robbery have longer average terms of imprisonment.

All sexual offences, be it either “other” sexual offences or sexual assault, are treated more harshly when the victim is 11 years and under than when the victim is 12 to 17 years old. For example, 47% of “other” sexual offence cases, where the victim was 11 or under, received a term of imprisonment. This was true for 39% of other sexual offences involving a victim of 12 to 17 years of age. Whether the accused is a family or non-family member also has an impact on whether the accused will receive a sentence of imprisonment. Upwards of 50% of cases where the accused is a family member get a term of imprisonment, compared to about 40% of cases where the accused is non-family.

In summary, Mr. Chairman, the data have shown that sexual offences are the least likely offence to be reported to the police. Young women aged 13 to 15 are the most vulnerable to sexual offences.

Roughly two-thirds of the accused are over the age of 21, where the victim was under the age of 18, and yet young males are at the highest risk of sexually offending.

Fewer incidents of sexual offences are being cleared by charge, and sexual offences have one of the lowest rates of conviction. However, when there are convictions, sexual offences are dealt with harshly by the courts, particularly when the victim is young and the accused is a family member.

Thank you, Mr. Chairman.

You'll find a series of supplementary points at the end of the presentation.

Thank you.

9:15 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Ms. Barr-Telford.

To the Canadian Bar Association, you have three people here. Are you all going to present, or is there going to be one presenter?

9:15 a.m.

Tamra Thomson Director, Legislation and Law Reform, Canadian Bar Association

We will each speak for about two minutes.

9:15 a.m.

Conservative

The Chair Conservative Art Hanger

Fine. That would be great, Ms. Thomson.

9:15 a.m.

Director, Legislation and Law Reform, Canadian Bar Association

Tamra Thomson

I will start.

9:15 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you.

If you want to introduce the topics of conversation that the other two members are going to present, go ahead.

9:15 a.m.

Director, Legislation and Law Reform, Canadian Bar Association

Tamra Thomson

Thank you, Mr. Chair and honourable members. The Canadian Bar Association is pleased to have this opportunity to speak to you today in support of Bill C-22.

The letter we have provided to you analyzing the bill has been prepared by our criminal justice section, which has among its membership both crown and defence counsel, as well as by the sexual orientation and gender identity conference.

The mandate of the Canadian Bar Association is to improve the law and the administration of justice, and we have analyzed the bill within that optic.

I'm going to ask Ms. Gallagher to speak about the Criminal Code aspects of the bill, and then Mr. Kindred will address some things that we think would improve the bill even more.

9:20 a.m.

Margaret Gallagher Treasurer, National Criminal Justice Section, Canadian Bar Association

Thank you.

As we've set out in the letter that Ms. Thomson has referred to, the CBA is very mindful of the fact that children must be protected from sexual exploitation by adults. We are also aware that the existing age of consent might contribute to sexual exploitation in some cases.

It is a reality that some young people engage in responsible and healthy sexual activity within consensual age-appropriate relationships, and this activity should not be criminalized. If the age of consent is to be increased, it is also appropriate to increase the close-in-age exemption.

Because Bill C-22 does this in a fair manner, the CBA supports the amendments proposed in the bill. However, to ensure the objectives of this bill are met, it is important that the law be fairly and consistently applied.

Mr. Kindred will speak to this issue.

9:20 a.m.

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

The CBA is pleased to have the opportunity to present today on an important equality issue in this area as well. It's an issue that the legal community has been aware of for more than a decade. It's raised now before this committee, because for the first time in some time, Parliament is again dealing with the issue of age of consent. I am speaking about the discriminatory provisions around anal intercourse in section 159 of the Criminal Code.

Since 1995 courts have told us that section 159 violates the charter, discriminating against gay men by stigmatizing their sexual conduct. One might ask why this is still an issue if courts have told us since 1995 that section 159 should be of no force and effect.

Courts have still had to deal with section 159 since 1995. We saw it come up again in 1998 in Quebec, in 2003 in British Columbia, in 2004 in Alberta, and in 2006 in Nova Scotia. All of those cases are cited at footnote four of our submission.

I would particularly note that for the 2006 case in Nova Scotia, a self-represented individual had to take the issue to the court of appeal in order to have his conviction under section 159 overturned.

This is actually still a live issue. But regardless of it being a live issue in the courts today, the fact that a discriminatory provision still exists in the Criminal Code sends a message in and of itself that is inappropriate and discriminatory.

We have also heard there are objections being raised to dealing with section 159 in the context of this bill.

Of course it's not for a witness to tell the committee about its own procedure. I will say there may be ways this committee can deal with the section 159 issue that are within the scope of the bill before you today. It may be that it instead requires the political will of the government and the minister to either amend the bill or to deal with section 159 in some separate manner.

The CBA firmly takes the position that full equality requires the repeal of section 159 and that the time is now.

Thank you.

9:20 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you.

From White Ribbon Against Pornography, Ms. Judy Nuttall.

March 29th, 2007 / 9:20 a.m.

Judy Nuttall Coordinator, Affiliated with Citizens Addressing Sexual Exploitation, White Ribbon Against Pornography

Thank you for giving me the opportunity to make this presentation today.

Ladies and gentlemen, Concerned Citizens Against Child Pornography has worked in Barrie for over ten years to bring awareness to parents and to our community that children's safety can no longer be taken for granted. Working with the White Ribbon Against Pornography campaign, each year we deliver boxes of ribbons and information to school staff rooms. Letters containing white ribbons are sent to all members of Parliament. Boxes of ribbons with flyers have been available in banks, churches, and stores. Letters are sent to local and national TV, and interviews on local TV and Rogers—

9:25 a.m.

Conservative

The Chair Conservative Art Hanger

Excuse me, Ms. Nuttall, but perhaps you would slow down a little for the interpreters, please.

9:25 a.m.

Coordinator, Affiliated with Citizens Addressing Sexual Exploitation, White Ribbon Against Pornography

Judy Nuttall

Oh, I am sorry.

9:25 a.m.

Conservative

The Chair Conservative Art Hanger

That's not a problem. Just slow down a little.

9:25 a.m.

Coordinator, Affiliated with Citizens Addressing Sexual Exploitation, White Ribbon Against Pornography

Judy Nuttall

Okay.

Letters were sent to all provincial MPPs in Ontario, and in 2006 it was recorded in Hansard that by unanimous vote, the white ribbon from the White Ribbon Against Pornography campaign was to be worn for one day of that week. We also sent 8,000 letters from Barrie constituents to the judges of the Supreme Court, pleading for the age of consent to be raised, as the John Robin Sharpe case was debated.

Why are we doing this? In 1995 a judge ruled in Toronto that a man who had sexually abused a 14-year-old boy received minimal punishment. There was no concept of the agony of the victim. As well, 1999 brought the scourge of child pornography right to our door in Barrie, when Ivan Cohen was found guilty of possessing and producing child pornography. A jail sentence was ruled, but on being sent to the Ontario Court of Appeal, the sentence was commuted to house arrest, causing great anger locally. Then the case of John Robin Sharpe, with all its twists and turns, emerged before the public eye.

The Universal Declaration of Human Rights was and is being abused here in Canada. In exercising rights and freedoms, there must be accountability for the corrupt uses of personal rights that harm other people, especially children, and that abuse of all our rights. The rights of the individual have to be seen in the context of the ultimate good of the nation. The rights of the victim have to be considered against the rights of the offender. Without this, we lose our freedoms. We disintegrate into a justice system that has lost its way, that has lost sight of what real justice is.

The linchpin of the increase in child pornography centres on the age of consent. Canada has an age of consent to sex that is lower than in any other country in the world. Adults can legally engage in sexual activity with children 14 and older. The age of consent creates a large loophole in the law. Case: at 14, Canada's consent is lower than most western nations. There are no other western countries that have legalized sex as low as the age of 14. The National Post reports that a growing number of foreign men have used the Internet to lure Canadian children. And according to Concerned Citizens Against Child Pornography, reducing the age of consent is the key to the rise in Canada's pedophile crime, including Internet luring.

On asking my former MP about this, she replied that it was ancient law. So how many other ancient laws has Canada retained? The U.S.A., the U.K., and other countries have updated their medieval laws on marriage and sex. Why hasn't Canada?

The age of consent continues to be a legal loophole by which pedophiles are abusing our children. Action must be taken, and quickly, in order to protect and ensure the innocence of our children. Police Chief Fantino has said that even third world countries are more civilized and conscientious than ours is about our duty as adults to protect the most vulnerable component of our society, our children. According to Focus on the Family, a clear and present danger is facing our children. And Manitoba Premier Gary Doer has said that we believe the rights of children should be superior rights, in our country, to the rights of perverts.

In terms of development, a 14-year-old is not prepared for the responsibility of sex. Emotional, physiological, physical, mental, psychological, and spiritual maturity—all are factors over the next two to four years. A 14-year-old cannot understand or appreciate the danger of STDs, some of which are fatal, all of which play havoc with the lives of people who have been impacted by them.

Children abused in child pornography demonstrate multiple symptoms: emotional withdrawal, anti-social behaviour, mood swings, depression, fear, anxiety, a high risk of becoming perpetrators in later life, and destructive feelings of guilt and shame. Pornography desensitizes children.

Canada has cumbersome, outdated, time-consuming, ineffective, and expensive pornography investigation and laws. As the WRAP campaign flyer puts it, outdated disclosure rules force police to examine every computer file they seize before a charge is laid. Other western countries examine two or three files and then arrest the pedophile. The work of Project P and other similar groundbreaking endeavours are making clear progress in this very difficult and stressful protective work for Canada and Canadian children.

Finally, the “name and shame” move in England held a very apposite point, as this headline illustrates: “Named and Shamed: The MPs who won't back Sarah's Law”. This is with reference to the offenders' registry. It's similar to Christopher's law in Ontario and Megan's law in the U.S.A.

I call on the federal Parliament of Canada to bring in vital legislation necessary to raise the age of consent from 14 to 16 in order to protect the children of Canada, who are the future generation for this country.

Thank you.

9:30 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you very much, Ms. Nuttall.

Now we'll hear Mr. Steve Sullivan of the Canadian Resource Centre for Victims of Crime.

9:30 a.m.

Steve Sullivan President, Canadian Resource Centre for Victims of Crime

Thank you, Mr. Chair.

It's a pleasure to be before the committee on this bill. It's one that, Mr. Chair, you and I have discussed in the past in your own attempts to pass similar legislation, which we supported. We supported as well the measures in Bill C-2, which this committee dealt with a couple of years ago and which I think provided added protection for children up to the age of 18, with more discretion, obviously, than this bill.

I won't say very much. It's rare that we come to a committee when everyone seems to agree, at least on the principles of the bill. There's not a whole lot for us to say.

I think I'll echo what Mr. Gillespie said about the issue of the Internet and the discussions that go on within those chat rooms between people who would seek to exploit children.

About the lower age of consent, I was at a conference recently with investigators and crown prosecutors who deal with these kinds of situations, and this was a topic of discussion. One of the investigators gave us a demonstration. He went into a chat room, posing as a girl who was 13. We could tell the number of men who wanted to initiate a discussion with that officer by the pings. It was just ping, ping, ping—one ping after another. It was quite disturbing to see. This was one o'clock in the afternoon, and to see that many people out there, many of whom would, I think, seek to exploit that child—

The officer talked as well about how, when they initiate discussions, some of these individuals will try to keep the discussion going with that child until they reach the age of 14. That was a concern as well. I think this bill will add a tool to the repertoire of law enforcement and will better protect children. It's important to keep the focus on the motivations of the adult and not on the consent of the young person. This is focusing on individuals who seek to exploit children for their own purposes.

I'll just briefly mention one other issue. We've recently testified before some your colleagues on the access to information committee, which is reviewing PIPEDA, the privacy legislation. We're trying to get the debate about privacy—in that case the privacy of Internet subscribers—expanded to include the need to protect the privacy of these children, whose images are being traded on the Internet like baseball cards. We have to begin to deal with the realization that we have young people who have access to Webcams, who are being manipulated by older individuals to share their photos. We need to begin to protect those privacy rights as well.

Thank you, Mr. Chairman.

9:30 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Mr. Sullivan.

From Justice for Children and Youth, we have Martha MacKinnon and Emily Chan.

Who will be presenting?

9:30 a.m.

Martha Mackinnon Executive Director, Justice for Children and Youth

I will. Thank you, Mr. Chair.

I would also like to express our gratitude for the opportunity to be here. Justice for Children and Youth is a legal clinic that addresses all of the legal regimes that affect children. In fact, we're Canada's only clinic with the breadth of the types of laws that affect children and youth that we deal with.

In addition, Justice for Children and Youth is a strong supporter of Canada's implementation of the UN Convention on the Rights of the Child, and for that reason we're particularly happy to be here, because the convention recognizes the balance both of the intrinsic individual rights of the child and of their need for special protections. So I thank you very much for the opportunity.

We have read Bill C-22 with those principles, this balancing in mind. I will apologize. We have prepared a written submission; however, I was unable to complete it in time for translation, so I have provided it to the clerk and I hope you will have the opportunity to look at it when it's in a suitable form for you all.

We have a few recommendations or positions relating to Bill C-22. The first position, which I believe everyone in this room shares, is that no one wants young people to be sexually exploited. We are also supporters of the amendments referred to by Mr. Sullivan in 2005 that set out criteria and broadened our understanding of what sexual exploitation might look like. And in fact those amendments specifically identified age and age difference as two of the possible criteria to be considered. We supported those amendments and are delighted they have been enacted.

Bill C-22 doesn't change our understanding of sexual exploitation. It does, however, broaden the protection against predatory luring for 14- and 15-year-olds. We support that as well.

I'm not going to go into our lengthy submissions on this point, but we agree with the Canadian Bar Association that this legislation is the opportunity—and there is a moral and I think a legal mandate—to repeal section 159 of the Criminal Code. That provision is, in our opinion, discriminatory. In fact, Justice for Children and Youth intervened at the Ontario Court of Appeal in the case that changed the law in Ontario, the case that has been referred to by the Canadian Bar Association. So I won't go on and make further submissions. As I said, they're in our written comment about that. I'll simply agree with the Canadian Bar Association.

I will, however, point out one piece of language, and that is that the government's backgrounder with respect to Bill C-22 suggests that the age of 18 is the age at which exploitative sexual relationships are legal. So I would point out that it's therefore not appropriate to be indicating that section 159 of the Criminal Code by its very nature is addressing exploitative conduct.

The next point I'm grateful to have the opportunity to make is slightly more complex. That relates to the close-in-age exemption. The close-in-age exemption, in my view, is a proxy for power imbalance. We assume—and I think mostly we're right—that people who are significantly older have more power, more ability to manipulate. It's a proxy for what we think is wrong.

We don't have rules about it if you're over 18. We've all seen relationships in which age isn't the determining factor for what creates a power imbalance, so it's problematic. As then Minister Toews suggested, sexually active 14- and 15-year-olds mostly are having their relationships with peers or cohorts, but not all—it's “mostly”. In addition, again as then Minister of Justice Toews suggested, the intent of this legislation is not to criminalize teenage conduct, and yet the relationship of a 14-year-old and a 19-year-old, even if their birthdays are the same day, would in fact be criminalized.

The law likes ages because they're certain, they're easier to apply, and there is an attractiveness to them, yet they might not in fact reflect a relationship that is exploitative or has a power imbalance or is manipulative. Therefore, we have a suggestion that I think would allow our courts to look at the nature of the actual relationship in perhaps a more effective way. It is our submission that the sexual exploitation provisions be amended to say that an age gap of five years or more is presumptively exploitative. It's not just a factor to be considered; one can presume legally that it is exploitative.

Legally, presumptions are rebuttable; hence, if you had a relationship in which — We can all picture somebody who is as sophisticated, as in control, as mature, as someone who's five years older than they, and that would allow for that sort of relationship not to be criminalized.

Our last suggestion with respect to this bill relates to the past as well. Canada's laws with respect to sexual activity are complex. They're hard to follow. At one point in my career, when I was counsel to a school board, I actually drew a chart trying to show what was legal and what was not, because young people have difficulty understanding it. It won't be any easier if Bill C-22 is passed unamended. It's our submission that there needs to be a targeted public education campaign.

I think there are two targets. One is a general public education campaign for everyone, which may have a deterrent effect, but in any case will make it clear what the rules are, because they're somewhat complicated.

The second thing is that young people need to be addressed in a targeted public education campaign. They don't necessarily understand the rules that apply to them. One of the concerns—and I know others have expressed this to you—is that if you think it's illegal, you won't seek the help you need. You won't report to the police; you won't seek health information; you won't seek birth control information. You'll go underground. No one wants that, and it ought not to be the effect of Bill C-22, but it may well be, because it's going to be hard to understand.

In our submission, a campaign that fleshes out what exploitation looks like and what luring looks like and that helps young people to actually understand the rules that are going to apply to them and their relationships might have the effect—and I hope it would—of allowing young people themselves, through their own voices, to say, “Hey, you can't do that to me.”

Thank you.

9:40 a.m.

Conservative

The Chair Conservative Art Hanger

Thank you, Ms. Mackinnon.

We will begin questions. Ms. Jennings is first.

9:40 a.m.

Liberal

Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC

Thank you very much for your presentations.

Mr. Kindred, you referred to section 159 of the Criminal Code, which has already been found to be unconstitutional by several courts in Canada because of its discriminatory nature. You said that it was possible to repeal it without violating committee and House procedures. I would like to hear your suggestions on that.

We agree with the Canadian Bar Association and the other witnesses that the government should have corrected the bill. The government, for whatever reason, decided not to do so. We would like to know if it is possible to correct this bill.

9:40 a.m.

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

Kevin Kindred

Thank you very much.

I should preface my response by saying I'm certainly not an expert in the committee's procedure, and I would also preface it by saying that the firm view of the CBA is still that the most appropriate response to section 159 would be a complete repeal. So I would far from suggest that any other measure would be a complete or appropriate response. However, I'm not sure that the same effect couldn't be accomplished by way of amendments to section 151, the section that does set out the age of consent defence for sexual offences. That section lists a number of sexual offences. I'm not sure that we couldn't accomplish the same end by adding section 159 to the list of offences in section 150.1. Again, that's something to consider as a way around. The CBA's position, though, is that the only really appropriate response is a full repeal of section 159.