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.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you.
The other question that I have is for Ms. Mackinnon, Justice for Children and Youth.
You talked about how your organization was an intervenor in the Ontario Court of Appeal case dealing precisely with section 159. I'd like to ask if that was through the court challenges program, or do you have your own private sources of funding?
Executive Director, Justice for Children and Youth
Justice for Children and Youth is a legal aid clinic. We are funded primarily, not 100% but primarily, by Legal Aid Ontario. And because we're a specialty clinic—it may be more than one area of law, but it's specializing in the laws that affect youth—we have a mandate to do test cases or legal work that will have a broad systemic effect to enhance both the rights and the protections for young people.
Executive Director, Justice for Children and Youth
The answer is no, it was not—
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
In your case, you're fortunate enough to have a specific mandate given to you by the government, I'm assuming, and the budget in order to carry out these test cases, for instance.
Executive Director, Justice for Children and Youth
I was going to say yes, but when you broadened it to “these test cases” we sometimes do have court challenges--
Executive Director, Justice for Children and Youth
We have obtained court challenges funding in the past.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Could you give us an example of the nature of the issue?
Executive Director, Justice for Children and Youth
Yes. That was the repeal of section 43 of the Criminal Code, the corporal punishment offence. That was funded by court challenges.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you.
Those are my questions for now. If I have any time I would turn it over to Mr. Lee.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I'd like to direct a question to the Canadian Bar Association or any of the legal technical heads around the witness table.
Ms. Mackinnon has mentioned this concept of a presumptive exploitive relationship. I'm attracted to the concept, because if a court were confronted with a real relationship between, let us hypothetically suggest, a 15-year-old and a 21-year-old, which by all accounts looked like a real relationship and where the charges were generated by suasion of family or something, not necessarily by the 15-year-old complainant—let's say he or she wasn't a complainant but the charges just got generated—it seems to me that a court would look somewhat sympathetically at a defence that was based on a constitutional freedom of association, personal freedom of the 15-year-old and of the 21-year-old. I'm suggesting here the potential availability of some constitutional defence that would be analogous in impact to the impact of the presumptive exploitive relationship concept suggested by Ms. Mackinnon.
Would you care to comment on whether or not the rigid close-in-age exemption would be vulnerable to a Constitution-based defence in a small number of cases, but hypothetically out there?
Director, Legislation and Law Reform, Canadian Bar Association
I will address that, if I may.
Certainly we were very happy to hear the suggestion of a presumption. The close-in-age exemption is a very important aspect of the CBA's consideration of Bill C-22, and we consider it essential. Anything that would allow a defence to be raised in the appropriate circumstance, I can say, should please both crown and defence and obviously maintain judicial discretion.
If a relationship is not shown to be exploitive, there should be a defence. People should not be criminalized for non-criminal activity. As my friend has pointed out, presumptions are certainly rebuttable. If it is shown to be exploitive, the purposes of the legislation would still be met.
You're asking whether the close-in-age exemption must be rigid. It would be my response, and I think I would speak for both crown and defence when I say this, that under the charter rigidity in the law is not something we should strive for, but there should be flexibility and tolerance. Certainly no one will escape a penal consequence if in fact a relationship is shown to be exploitive, regardless of the age difference. But there ought to be the lack of rigidity rather than—
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
If the rigidity—
I'm sorry. Do we have a time issue here?
Conservative
The Chair Conservative Art Hanger
It is a time issue. I know that probably Ms. Mackinnon wanted to comment. Your question was directed to certain individuals?
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I was just going to do a bit of a supplementary on the same issue to Ms. Thomson, but I can come back.
Conservative
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
Good morning. I would like to thank you all for the quality of your presentations. I think we all support this clause in the bill.
We discussed statistics earlier on, and you yourselves have already presented other statistics. It would seem that only 8% of sexual offences are reported to the police. Once they were and charges were laid, etc., statistics show that 62% of reported sex offences, in 2002-2003, were either stayed or did not go any further.
Only 8% of cases are reported, and out of that, 62% do not make it to trial or do not lead to a conviction. We can adopt any legislation we like, but we still need to do more.
What do you propose to better protect our children? My question is for Ms. Mackinnon or Ms. Lynn Barr-Telford.
Executive Director, Justice for Children and Youth
My suggestion was at least to begin with the public education campaign. I really believe that people are—in fact, you've heard it from others—confused about what the laws actually are in Canada. They're complicated and difficult.
I believe that young people themselves need to feel empowered. You've also heard from Ms. Barr-Telford that the largest part of the problem is from within families, and there are all kinds of reasons that young people don't report within a family. We have certainly represented young people whose mothers will take strong steps to discourage the young person from reporting criminal and inappropriate behaviour from a father towards a young daughter because the mother doesn't want to lose the income.
I've had calls myself from very young teenage girls who don't want to report because what happens is that they get taken into care, rather than the older family member being excluded from the home. Within a family, it's simply complicated, and it's very difficult to know. But I think the first step is public education.
The second step probably relates to hearing and giving more credence to the voice of young people themselves. We have been working on allowing young people to testify in ways that are safer for them, and we need to continue on that path.
Bloc
Carole Freeman Bloc Châteauguay—Saint-Constant, QC
Thank you.
Regarding the 62% I just mentioned, do you know why these cases go no further or are stayed?
Director, Canadian Centre for Justice Statistics, Statistics Canada
What I can speak to is what we know and what we've seen in the data. I'll reiterate some of the information that we do know in terms of statistics.
We do know from our 2004 general social survey on victimization—this covers the population for ages 15 and over, it doesn't cover the population under the age of 15—that 8% of sexual assaults come to the attention of the police. That we do know. We know that once the incidents are reported to the police, there are three things that can happen: they can be cleared by charge, cleared otherwise, or unsolved. We know that the charge rate for other sexual offences was low relative to other violent offences. So we do know that.
What we can't speak to are underlying reasons for why certain incidents may or may not be resulting in a charge or the laying of a charge. What we can speak to a bit—and I will draw your attention to one of the supplementary slides in our data package—is what we've learned from our general social survey of 15-year-olds and older on reasons for not reporting to the police. That's on page 9.
I'll reiterate that this covers the population for ages 15 and over, and it provides some information—from those who did not report the incidents to police—on the most frequently occurring reasons. You'll see that the victim saying that the incident was not important enough to the victim to report it to the police, that it was dealt with in another way, or that it was a personal matter are among the most frequently occurring reasons being cited for not reporting to the police.
As for the—
