Justice Committee on March 29th, 2007

[Kim Pate]

Yes, thank you.

I am the mother of a teenaged son, and when I was preparing for this I had some discussions with my son's friends and my daughter—who is pre-pubescent—and some of her friends, and in a very interesting way, the least informed were the most supportive. Let me put it that way.

I had thought about it, and in fact Professor Gilbert and I had some discussion about the whole issue of consent to medical treatment. We talked specifically about young women, and we wondered whether a young person going in to see her doctor, if there was a sexually transmitted disease or some other sexual health issue and she knew that her partner was beyond the scope of the five-year age, would report that, and what the consequences would be if she refused to report.

I suspect there are others, and probably Professor Gilbert herself has more information. I think there would be ramifications. There certainly are now if young women recant or don't report or withhold information in situations where the criminal law presumes that they should be providing that information, so I think there very likely would be concerns in that area.

Also, when I was talking with some young people yesterday at a birthday celebration that involved young men and young women, many of the young women said that they not only wouldn't report, but they might not even go to the doctor if they were fearful of that, and that caused me great concern. Young people, including my child—My son doesn't necessarily report everything to me. I don't presume that I'll get it. But I thought that if they would tell me that in a fairly open discussion, I'd be concerned about what else they might not talk about. If they would say that they might not actually report the sexual activity, that's one thing, but more importantly, if they wouldn't seek assistance, that was a much graver concern.

If in fact our interest is, as I think it is for all of us, protection of young people—and in my case I agree that some of it is maternalistic—I would want to think that even if my child were participating in a relationship that he or she was not comfortable telling me about, he or she would be comfortable going to their doctor, to whom they do go and have private conversations, and would be able to feel comfortable in disclosing. Now I'm not so sure that would be true.

I could raise other concerns, as a parent, of course, in another context, but in this particular issue I was surprised to hear that. I was surprised to hear it from a young woman who I don't know particularly well.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Freeman.

Mr. Trudell, do you want to reply?

[William Trudell]

I was just going to say it obviously creates real problems for the doctor in terms of patient care versus their responsibilities, and that's another sort of collateral issue that really has to be kept in mind in this area.

[The Chair, Conservative, Art Hanger]

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Good afternoon and thank you for your testimony here today.

I have a question for Ms. Daphne Gilbert. Earlier on, you drew my attention to a question Mr. Bagnell also referred to. You referred to the solemnization of marriage in the provinces and territories. If you take the Yukon, for instance, the age is set at 15. Formerly, in the province of Quebec, the age was set at 12 and 14. However, although marriage is a federal area of jurisdiction, its solemnization is provincial. Perhaps that distinction should be made.

Canada is a multi-ethnic country, so there are a number of customs here and we must show great respect. I don't know if you live in Ontario, but if so, you know how close Ontario was to having Sharia law passed as a way of settling matrimonial problems. Sharia law recognizes marriage at a far younger age than we do. Imagine the situation which would have occurred if Sharia law had passed by a single vote at Queen's Park. What would have happened today and what would we do with this bill? The same problem arises in the Yukon, where under the law people can get married at 15. Sharia law almost became a reality in Ontario. I understand that there may be a constitutional problem here, but it cannot be solved. It is a chicken and egg situation: which one came first?

Was the constitutional problem you are raising not already settled, specifically in the province of Quebec, where people could get married at 12 and 14 pursuant to the Civil Code which, it should be noted, dates back to 1866? Try to explain your views on this. I will try to follow. I can understand why Mr. Bagnell has some concerns, I do too. The questions do not only relate to the Yukon. You almost had the same problem in Ontario.

[Prof. Daphne Gilbert]

First of all, on the question of the federal and provincial split on control over marriage, at least so far it's been fairly settled law—and there have been actual cases about this—that it is within the provinces' competence as a solemnization question to set the age limits for marriage. Certainly that is uniformly accepted across the country at this point in time. Again, I repeat that this is partly because we really do believe that marriage is a local or a community-based matter.

The question with respect to sharia law is a very interesting and telling point: that there are enormous cultural variations with respect to attitudes towards marriage and there are community norms with respect to attitudes towards marriage. That's exactly why it's a provincial competence and exactly why we have very many modes for getting permission. If you are a young person and you want to get married, in some jurisdictions it's parental consent, in other jurisdictions you can go to court to get a court order, and in some places a minister can decide to give permission. So the provinces have taken different approaches, depending on their feelings about the community they're representing.

There is no question that this bill will require all provinces and all territories to reconsider their minimum age of marriage with respect to marriages that are occurring in violation of the Criminal Code. The problem is you're creating two regimes, in a way: you're going to have legal marriages between 15-year-olds, and if the person is less than the five years different it's going to be fine, but a constitutional problem will arise if a 15-year-old wants to marry a 21-year- old. Comments aside around 40- and 50-year-old men, I think this is really a problem arising mostly with that just-outside-the-age-gap question, and that's where small communities, northern communities, and religious communities have particular constraints around how they're approaching the marriage question.

I think the one thing you would hate to see is some sort of exception for sexual activity within marriage for all of the reasons around privileging the marriage relationship. It's a question that the provinces are going to have to be involved in answering. You may have unanimity, they may all agree that they're going to raise their absolute age to 16, but you're still going to have the question of what to do with those processes for people who want to go to court and get a special court order giving them permission to marry. What does a judge do with competing laws on what is lawful sexual activity? Do we want courts and parents consenting to what would otherwise be unlawful sexual activity? Those are all important questions.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Ms. Jennings.

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

Thank you, Chair.

Thank you very much for your presentations. I have a couple of questions that follow on suggestions or recommendations that were made by witnesses earlier this morning. Before I ask them, I'd simply like to address the issue of the lack of consultation with teenagers.

Normally a government that is thinking about bringing about a substantive change to a particular legal framework or law conducts what's called pre-consultations. It actually informs the public that it's thinking of changing a particular law, and it asks for people and organizations to write in, to e-mail, and to send in their views, and there's a deadline. Once everything is received, it's all collated, and the basic views that are received are summarized.

The government then organizes panel discussions, round tables, or whatever, with a representative number of stakeholder groups. Only then does the government actually move forward with actual legislation, which is then tabled in the House, etc.

I'm not aware that this government did that. I am aware that the complaint we hear regularly on other bills is that there was no pre-consultation and the traditional process was not respected. That is an issue you may wish to take up directly with this government.

My questions follow on the recommendations of previous witnesses and are on the issue of the discriminatory section, section 159, which criminalizes anal intercourse if you're under the age of 18. It's criminal right now, even with the age of consent at 14. It doesn't change anything for anal intercourse, regardless of what the age of consent is; if you're under 18, it's a criminal act.

First of all, that has been judged to be unconstitutional by a number of provincial courts, and at least by the Court of Appeal for Ontario, but it hasn't gone all the way to the Supreme Court of Canada. It should be null and void. The government should in fact repeal the whole section, and it had an opportunity to do so with Bill C-22. Had the government done the pre-consultation, perhaps they might have heard from sufficient witnesses and legal experts that they would have included it.

Under our rules here in Parliament, because that section isn't touched by Bill C-22, it means that if we attempt to bring an amendment that would repeal section 159, it would be deemed out of order. Some witnesses have suggested that we should in fact amend section 150.1 of the Criminal Code, which is dealt with in Bill C-22, by adding section 159. I'd like to know if you have any comment on that. That would be a stop-gap remedy until the government, in its wisdom, finally repeals section 159 in its entirety.

There's a second point that I would like your comments on. There has also been a suggestion that rather than having a hard and fast law saying that if the difference in age is five years or more it's automatically deemed a sexually exploitive relationship and there is no defence, it should be presumed to be a sexually exploitative relationship, in which case it would allow for that to be rebutted. You would then have the possibility of someone who is 22 years old with someone who is 16 years old, and they would be able to rebut that. That's my second question.

If I have time—

[The Chair, Conservative, Art Hanger]

You won't have time. Your time is almost up right now.

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

I like to get the questions out so that they can always respond in writing, through the chair.

[The Chair, Conservative, Art Hanger]

You can put the question, but the response may be cut short.

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

The other point I have is that it is a real concern that young people, even today, will not share with health care providers, with people who have the information and can provide them with good, healthy information about sexual relationships and sexual health, etc. It may in fact become even more of a problem.

Given that it's already a problem, I don't think Bill C-22 is that substantive on that issue. I think the problem is that as a government, federally and otherwise, we haven't made the measures and the tools available in order to do the kind of education and provide the kind of information to young people so that, one, they know what the law is; and two, they're comfortable that they can go to and confide in their health care providers. I'd like your comments on that.

Thank you.

[The Chair, Conservative, Art Hanger]

I would ask those who are going to respond to make it very short.

[William Trudell]

Section 159 is dangling out there. I think you have to bring it in. If you can't, have it repealed.

It's too bad there's no preamble here. If you had a preamble, you could say that whereas we respect the rights of young people to make decisions, the government has to protect them. You'd be giving the message that you want to educate, too.

So perhaps there could be a preamble here.

[Jason Gratl]

One of the great difficulties of legislating in the area of sexual age of consent is that the law itself is not very well understood.

Mr. Quist from the family institute raised the percentage that 90% of people are in support of this bill. I think that may well be because the existing provisions are so poorly understood. The general public doesn't understand that there are laws against sexual exploitation of children, doesn't understand that there are laws preventing persons in positions of trust, power, and authority from having sexual contact with minors. A great deal of the public concern over sexual exploitation could be dealt with by educating the public on the existing ages of consent. It's a comprehensive, complex scheme.

The single unified message that's going to go out with Bill C-22 is not the close-in-age exemption; rather, it's that the age of consent is being increased from 14 to 16. And that will send a message about children's sexual autonomy that is wholly undesirable; it will signal a bit of a cultural shift towards moralizing, towards a kind of fundamentalist approach towards sexuality that's highly undesirable.

So it's that general tenor, not the specifics of the regime, that really will be manifest at the cultural level.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Gratl. Sorry to have to cut you short.

I understood Mr. Quist's statement to be that the public was under the impression that their children were protected already, and they were not very aware that the ages were so low in this area. That's my understanding, but Mr. Quist can comment.

Ms. Pate.

[Kim Pate]

Just very briefly, I would support everything Ms. Jennings said there. Rather than repeat it, I'll just say we support it.

In the alternative, our first position would be that rather than throwing another law at this issue, targeting the real concerns and implementing what laws do exist would be our first priority.

Yes, repealing section 159 is an issue. In the alternative, if you don't agree and you do decide to proceed with some version of Bill C-22, then to all of what you said I would say, yes, incorporate in terms of amendments.

[The Chair, Conservative, Art Hanger]

Mr. Dodds or Mr. Brett, either one of you.

[Nicholas Dodds]

I would like to address the reverse onus, specifically regarding proving that a relationship is not exploitive.

By saying that you can prove that a relationship is non-exploitive in a court of law, what you are saying is that this isn't a black and white issue. There are grey areas. There are areas where people may have non-exploitive relationships.

Also, if that provision were enacted, this would take the burden of proof--that is, the assumption of innocence until proven guilty--and turn it on its head. That's unconstitutional under the Canadian Charter of Rights and Freedoms, and I can't see that as being a realistic provision.

[The Chair, Conservative, Art Hanger]

Mr. Quist.

[Dave Quist]

As a point of clarification, the question was “Do you think the federal government should raise the current age of sexual consent from 14 to 16?” To that, 80% of respondents said yes.

I think education is important in this issue, as it is in all issues. Unfortunately, the law is so vague and so complex in many ways.... And I am not a legal expert, not a lawyer. I think we often know, or think we know, only the parts of the law we're faced with on particular issues, whether it be real estate or other issues. The education of the public is a big question that you as legislators face on a daily basis.

[The Chair, Conservative, Art Hanger]

Thank you, sir.

Ms. Gilbert.

[Prof. Daphne Gilbert]

I want to say that I certainly hope these two young men apply to my law school—I'm going to be handing out my card here—because I think they're acquitting themselves so magnificently today.

In terms of my feelings on a second alternative if the bill is going through, I would have to agree with what Ms. Pate has said in terms of supporting what you're suggesting.

With respect to the rebuttable presumption, I think the problem there is that you're still sending out the message of criminal behaviour. You're still sending out the message that young girls don't have control over their sexual autonomy. You're still capturing people within a criminal justice system. Rebuttable presumption would only work to the extent that you actually had a trial, and we know that most cases like this don't end up at trial. They're plea-bargained to avoid the costs and consequences of being caught up in the system.

So I see that as a really poor alternative, although I suppose it's the next best thing to an all-out ban.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Brown.

We'll get to Mr. Comartin directly after.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Mr. Chairman.

I've heard a few comments I'm going to respond to and then I'm going to have a question for Mr. Quist.

One comment I heard at the beginning of this hearing was that a lot of young people are against this. I wanted to note that I received two petitions in my riding from youth groups that were profoundly in support of this legislation, one from St. John Vianney Church, the other from St. Mary's Church. They were from hundreds of young people who very much admire the direction we're seeing in this Parliament—and not just from the government, a lot of parties are supporting this—that it is the right thing to do to protect children.

I also heard a comment that this is an erosion of a youth's sexual autonomy. I'd like to note that this is not an erosion of a youth's sexual autonomy. If a 15-year-old were having sexual relations with a 17-year-old, there's no erosion there. They may choose to do that. But what this means is that it's an erosion of child exploitation, and that's something to be very proud of. It's an erosion that someone who is 50 will not be allowed to have sex with a 15-year-old. That's the only erosion happening, and I think that's something that a lot of young people will be very much in support of and would be very proud of.

I also heard the comment that this is a move toward fundamentalism, and I found that very surprising. I think that characterization would be saying that mainstream Canada is moving toward fundamentalism. Because that's what this is. These are mainstream values. To use the legal term, if you're going to take judicial notice of something, I think it would be safe to say that the majority, the vast majority of Canadians, believe that it's unacceptable to have a 50-year-old having sex with a 15-year-old. This legislation is about the protection of children. Bottom line, that's what it's about. That's why it's getting so much support across political lines.

This legislation is very helpful for that. That's why we've been seeing these white ribbons across the country, wherever we are gathering steam, gathering support. By and large, Canadians of all age groups, in all regions, are very much in support of this legislation.

I think there are many reasons for that, but Mr. Quist, could you talk to us about the long-term consequences of this? To give you a few areas I'd be interested in, one is for children who are exploited in an area this legislation's potentially going to protect. Obviously we're never going to protect against every abuse, every crime, every exploitation, but for the ones that it may help, that this stigma may be there and may prevent a future crime, what are the benefits that's going to have in terms of people who may not have that erosion in their lives? For those who are exploited, are there greater rates of family problems? Are there greater rates of divorces down the road? Are there higher incidences of drug use? Are there higher incidences of crime? Is there any evidence your group might have that would suggest those who are abused or exploited at a young age have their future prospects damaged?

If someone's exploited at a very young age, I think one concern that many would have is that we are damaging their growth so much. It would be interesting if any studies highlight how that affects them, not just in the immediate tragic moment, but 10 years down the road or 20 years down the road, in terms of what happens to these victims.